1 Se a niv e rsit y Sc h ool of L a w Di g it a l C o mm o ns ttle U Faculty Scholarship 2018 al F empir e?: W ome n in C omplex C ivil A Leg igation Lit e D . C ole m an Brook s and additional works at: https://d igitalcommon s.law.seattleu.edu/fa culty Follow thi Part of the Law Common s Recomme nded Citation lex C Brooke D. Coleman, A L 617 (2018). .J. Ind. L ivil Litigation, 93 egal Fempire?: W omp n in C ome s.law.seattleu.edu/fa https://d igitalcommon culty/803 gital Common s. It has be en accepted for inclusion in This Article i ree and ope s brought to you for f n access by Seattle U niversity Schoo l of L aw Di l of L mation, p Faculty Scholarship b lease contact e infor s. For mor gital Common aw Di y an author niversity Schoo eattle U strator of S ized admini eattleu.edu [email protected] .
2 A Legal Fempire?: Litigation Civil Complex in Women COLEMAN* D. BROOKE be that said she would when she made headlines Ruth Ginsburg Bader Justice nine." are there "when Supreme Court on women of the number the with satisfied men nine were there all, remarkable? After so have been answer that should why But was met statement Yet, Justice Ginsburg's history. all of its nearly Court for the on have been would answer quarters-disdain. What some from with amusement-or litigator? feminist from a groundbreaking appropriate coming more considered presumptuous? have been answer? Wouldfive acceptable been an Wouldfour have women can representation view of how much our cramped This reflects episode indeed, while profession. And of the legal the loftiest in reaches expect and should numbers, they school in record from law graduating and attending have been women are they partner, make they when Even firms. law in of partners the a only fifth are are women Likewise, counterparts. of their male compensation half the nearly paid com- and in practitioners, appellate as judges, state as andfederal underrepresented plex litigation. function- the to important is equity gender that view the from begins This Article the rather equity-or gender and assesses our legal of system, legitimacy and ing bias gender on the reflects the First, Article the profession. legal thereof-within lack study case a using Second, four decades ago. began almost that movement force task on the the role of women by examining updates work that the Article approach, litigation and in multidistrict Litigation, as judges, for Multidistrict Panel Judicial gender equity in barriers to assessing the ongoing after Finally, roles. leadership reforms, the as well as its modest gender-equalizing complex modern civil litigation equality. gender to move toward for how set ofproposals with a closes Article sex female the to which belongs delicacy and timidity natural and proper "The Bradley Joseph "'-Justice [the law]. for it unfits of practice evidently her of experiences richness with the woman wise Latina a hope that would "I hasn't male who a white than conclusion better reach a not than more often would 2 Sonia Sotomayor life. -Justice " that lived * William C. Oltman Professor of Teaching Excellence and Associate Professor Law, of Andrew Bradt, Elizabeth Law. Thanks to Pamela Bookman, School Seattle University of Chamblee Burch, Maggie Chon, Seth Endo, Richard Freer, Roger Michalski, Elizabeth Porter, helpful for their Thornburg Elizabeth and Norman Spaulding, Sinnar, Shirin Danya Reda, Federal Annual Ninth the at from greatly presentations benefited also comments. Article The Workshop. Series Summer Law of School University and Workshop Courts Seattle 1. Bradwell v. Illinois, 83 U.S. 130, 141 (1872) (Bradley, J., concurring). BERKELEY (2002). 92 87, L.J. RAZA LA 13 Voice, Judge's Latina A Sonia Sotomayor, 2.
3 INDIANA LAW JOURNAL 618 93:617 [Vol. 618 ... INTRODUCTION 622 ... THE A. "FIRSTS" ... ... 625 STUDIES TASK FORCE BIAS GENDER B. 1. THE ... 627 JUDGES: ... WOMEN AS LAWYERS NUMBERS AND ... 628 2. SEXIST TREATMENT OF WOMEN ... FORCE C. GENDER BIAS TASK ... RECOMMENDATIONS 629 631 ... WOMEN & LITIGATION COMPLEX MODERN II. JUDICIAL PANEL A. MULTIDISTRICT ON LITIGATION ... 631 TRANSFEREE B. JUDGES...635 LITIGATION...635 MDL C. GENDER III. EQUALITY MOVING FORWARD ... 637 CASE FOR GENDER THE A. EQUITY... ... 637 PATH TO GENDER EQUITY ... ... 643 SOME STEPS B. THE ON SEXISM BASE 1. & SOCIAL No s... ... 643 2. RETAINING & ELEVATING COMPLEX IN WOMEN LITIGATION PRACTICE ... 644 RESTRUCTURING 3. LITIGATION MULTIDISTRIcT PRACTICES...648 CONCLUSION. ... 651 INTRODUCTION the For first Multidistrict time, the Judicial Panel on is Litigation chaired by a woman and members.' of majority a has female feat. During This is no small the fifty nearly existence, fifty of Panel's years the only have served, judges seven of have whom the female fact, women. In been first until panelist was not appointed as recently as normative Gender as a equity, 2000.4 is matter, undoubtedly important calls Inequity the entire legal the legitimacy of Moreover, into question.s system studies repeatedly show that heterogeneity in better to leads making group decision results.' Thus, to critical the equity is efficacy these In legal system. our of respects, encouraging sign of progress. the current Panel is an Unfortunately, in the presence of women positions top the legal the at power of of profession is novel a development. While women half are almost students cur- of the make up only 36% of law profession overall.' rently attending school, they the legal 3. United States Judicial Panel on MultidistrictLitigation, U.S. Cwrent and Former Judges ofthe ON PANEL JuD. MuLmsRIcr LmG., http-//www.jpml.uscourts~gov/sitesfjpml/files/Curent_ Julie Judge Smith [https//pernna.cc/C5WB-M5T3]. of Judges Former the%20Panel-10-9-2015.pdf Gibbons was appointed in Id; 2000. see also Panel Judges, U.S. JuD. PANEL MULTIDISRcr ON LmG, http/www.jpmluscourts.gov/content/anel-judges [https//perim.cc/D2ZA-T69N]. note 3. 4. Panel Judges, supra III.A. 5. See infra Part III.A. 6. Part infra See 7. COMMI'N PROFESSION, ON WOMEN IN THE A CURRENT AM. BAR Ass'N, GLANCE AT WOMEN (2016), http://www.americanbar.org/content/dam/abamarketing/women/current IN THE 2 LAw glance statistics may2016.authcheckdam.pdf [https://perma.cc/K5ZB-AXZY]. In 2014-2015, first-year of 49.3% law students were women at 4. Id. 2011 to 2012 when This is up from 46.8% law were women. AM. BAR Ass'N, First Year students Total JD. Enrollment by first-year of and
4 619 A FEMPIRE? LEGAL 2018] 8 and state court judgeships. of every four federal hold they out only one On the bench, attend law firm jobs at higher rates, school women Further, while start and even law they occupy only 21% partnership of seats.' when Even achieve women partnership, pigeon- lawyers are also Female less than their male counterparts.o earn 44% they in law instead of practicing such family as practice areas into lower-income holed now oc- academy, women the practice and in of Outside sectors." legal high-paying dean- head 31% of only hold but professorships, school law of roughly 30% cupy ships.12 color of Women stark. also female legal professionals is The racial composition of state only 8% of and hold the overall population. Yet, they of 20% roughly up make judges appointed of the 1344 federal More specifically, court judgeships." appellate 4 53 were African Ameri- Of that been only women.1 347, only 347 have as 2016, of 5 Indian.' Women 1 was American American, and Latina, Asian 11 were can, 29 were 6 In 3% of of positions at law firms.' color also make 2015, up less than partnership women, and by Asian American were held than partnerships 1% of law slightly more 1947-2011, http://www.americanbar.org/content/dam/aba/administrative/legal 1, Gender, at lyr totalgender.authcheckdam.p bar/statistics/id _the enrollment to educationandadmissions df [https://perma.ccILK5W-K2W8]. ON WOMEN IN THE PROFESSION, supra note 7, at 8. See COMM'N 5. at 9. Id. 2. Women, Than Survey Shows, Partners Make 44 Percent Male More Lizzy McLellan, 10. http://www.law.com/sites/almstaff/2016/10/12/male- AM), 11:21 20, (Oct. 2016, LAW.COM partners-make-44-percent-more-than-women-survey-shows/?sretum='20170723130302 [https://perma.cc/FW6Z-LE7N]. Profession?, Wis. in the Legal B. ST. Gender Still Matter C. Dugan, Does 11. Hannah 2002), 1, (Oct. http://www.wisbar.org/newspublications/wisconsinlawyer/pages/article.aspx? also tend not ("They [https://perma.cc/P49S-T2SN] Volume=75&lssue='10&ArticlelD=248 fewer women practice that are more lucrative; for example, areas law in substantive practice to civil litigation, which can bring in substantial contingency fees thus and higher pay. Instead, such as commonly family law that of practice concentrate areas on higher numbers in women numbers of just areas and that have practice higher other substantive are not as lucrative as cannot clients pay earned fees."). simply unhappy who or will not AT A BAR Ass'N, CURRENT GLANCE WOMEN Am. IN PROFESSION, THE ON COMM'N 12. Underrepresentation of note 7; Adriane Kayoko Peralta, The 4, supra WOMEN IN THE LAW L.J. 69, RAZA 74 LA Positions, 25 BERKELEY Leadership Review Law Color of Women in only 30.4% women, and faculty members are of full-time of 2012, "[o]nly (as 21.5% (2015) tenure-track professors women"). of tenure are or WHO GAP: GAVEL THE Soc'v, AM. YooN, H. CONST. & ALBERT E. 13. GEORGE TRACEY http://gavelgap.org/pdf/gavel-gap-report.pdf 7, COURTS? STATE ON IN JUDGMENT SITs [https://perma.cc/H9ZS-V3Z8]. K. Stubbs, A Demographic History ofFederal Judicial Appointments by Sex 14. Jonathan of the number RAZA L.J. 92, BERK. (2016) (examining 117 LA 1789-2016, and Race: 26 judges federal courts jurisdiction). on of general Id. 15. Great the Since Legal Profession Has Flatlined the in Renwei Chung, 16. Diversity Recession; Who Is To Blame?, ABOVE THE LAW (Jan. 6, 2017, 4:31 PM), http://abovethelaw.com/2017/01/diversity-in-the-legal-profession-has-flatlined-since-the- great-recession-who-is-to-blame [https://perma.cc/49MJ-U7U8].
5 JOURNAL LAW INDIANA 93:617 620 [Vol. re- and Latina women, black women were held by than half percent a slightly more 7 spectively. the In academic setting, women color of are similarly underrepresented, law school of head and 8% positions and tenure-track tenure the of 7% only holding school law as serving color women of only 772 there were As of 2009 deanships."' 9 professors.' the legal lack thereof-within the rather equity-or gender Article assesses This the for argued activists and academics, lawyers, ago, years forty Nearly profession. within improve their experience and in law to women of number the increase need to 20 created federal courts effort, state and of that part major As a the legal system. to lawyers, parties, and court bias task forces" staff how female "gender look at 2 task forces generally studies varied, these of their granular results 1 While the fared. suffered often lawyers women lawyers practice, dominated legal male that found on the were regularly mistreated staff parties and female and gross discrimination, 22 of number a out laid forces task the findings, these with Armed gender. basis of legal within the women hiring of and treatment the for how to improve prescriptions are forces these task the goals of that demonstrate current statistics The profession. not yet fully realized. task bias some of the gender Article updates this approach,. Using a case study it More specifically, civil litigation. women and complex on focusing by work force as Litigation, Panel for Multidistrict Judicial the on of women at role the will look 23 this arena high-stakes Data roles. in litigation leadership in multidistrict and judges, is necessarily limited because provides it only snapshot a of the larger legal market, is a litigation still of Complex interest. are litigation from complex the insights yet creates a area, and one for which exclusivity practice competitive and elite highly to which the extent equity. Conversely, gender challenging setting for particularly be litigation might in complex working and adopted are reforms gender-equalizing 2 4 Article in other contexts. The could have success reforms those the of an indication bias task gender reflect on the litigation, within complex consider developments will at Lose Ground American-Associates Black/African Release, NALP, Women, Press 17. Major U.S. Law Firms 4 tbl.2 (Nov. 19, 2015), http://www.nalp.org/lawfirmdiversity nov2015#tablel [https://perma.cc/M2Q5-VCUW]. (2016). 441,445-46,448 L & J. RAcE MIcH. 20 Professor, Law ofa Tr4ectory Deo, Meera E. 18. were 18% were Latina, 14.5% those, 53% Of African American, were 447. 19. Id. at picture improves academic Id. 2.7% Native American. were The Asian/Pacific Islander, and associate and deans include are collapsed to leadership positions law all if school slightly leaders, with white women 12% of law school of color make up women Then, deans. increasing to Id. at 448. 35%. 20. InfraPartI.C. Id. 21. 22. Id. focus on the private, not public, sector. See infra note 105. 23. The Article will at the from problem this looking only there that of risk is a acknowledged be It 24. should A Social Mack, "from See Kenneth Walter it below." addressing not elite perspective and also Black of Women and the Incorporation Alexander T.M Practice: Sadie of History Everyday As (2002). 1410 1405, CORNELL L. REv. 87 Legal Profession, 1925-1960, the American into perspective an elite is from the risk of analyzing the problem and elite, I am an academic, an complex litigation. by at private looking compounded further
6 621 FEMPIRE? A LEGAL 2018] within com- equity both for achieving gender proposals with and close efforts, force legal system. broader and the litigation plex IN LAW I. WOMEN out an ac- leaving By is troublesome. group monolithic a as women Discussing at are the women who of the experience orientation, sexual class, or of race, count 5 2 that taking an Some have argued lost. is "other" their gender and of intersection of female- common characteristic on focuses the that essentialist approach-one women are treated un- of how concentrated examination for a necessary ness-is 26 paints an inac- to side the intersectionality leaving have that argued fairly. Others 2 7 the Add to this experiences. women's of individual picture curate and misleading gender, and the intersection of race around of information and statistics lack sheer 2 8 of a complete and rigorous account the challenge of and presenting example, for law is apparent. women in the L. REv. 2195, 45 Courts, STAN. From Classes to Gender Bias: 25. See Judith Resnik, of the available that "much limited in studies are gender bias the that (noting (1993) 2204 men, on the one women and distinctions between relies drawing on information demographic is also a the who woman making invisible on other-thus the and among 'minorities' hand, Ends: Dead and Glass Ceilings minority"); Wald, Eli ethnic or racial of an member Law at Large of Women Lawyers Future and the Stereotypes, Gender Ideologies, Professional of metaproblem" the "conceptual (noting 2248 (2010) 2245, L. REv. 78 FORDHAM Firms, of women lawyers into one category, ignoring "collapsing the experiences racial, sexual- "highly as distinctions" and cultural socioeconomic, ethnoreligious, orientation, problematic"). a in An Experiment Pedagogy: and Legal Gender, Empiricism, Jackson, Vicki C. 26. 508-09 461, L.J. 83 GEO. Law Center, University at Georgetown Seminar Courts Federal much. exclude must anything, we order in accomplish to work, of piece (1994) ("In any now it as world sense the in make to seems of difference one source gender as on Focusing the risks of to warrant useful things learning some possibility for enough and to offer exists, "demands [of] that the 2248-49 (noting 25, at note Wald, supra misuse."); essentialist by to the discourse stall at times cause lawyers" "might as concepts 'women' such unpacking some "at that and too abstract" and overinclusive as propositions general rejecting necessary women affect all that [gender stereotypes] or trivialized should not be overlooked level it lawyers"). 27. e.g., IDENTITIES, See, POLITICS, AND RIGHTS (Austin Thomas Sarat & R. Kearns eds., JUSTICE AND CRIMINAL MOVEMENTS SOCIAL RESPONSIBILITIES: LIMITED PITCH, TAMAR 1995); (1989); 41-42 LAw OF POWER THE AND FEMINISM SMART, CAROL 1995); trans., Lea 189 (John Violence Politics, and Identity the Margins: Intersectionality, Mapping Crenshaw, Kimberle the (describing 1242-44 (1991) L. REv. 1241, STAN. Color, 43 of Against Women discourse); feminist within marginalization and their of women of color intersectional location 581, 585 REv. L. STAN. Theory, 42 Legal Feminist in Race andEssentialism Harris, P. Angela intersectional embrace and engage to feminist movement need the for the (1990) (discussing CULTURE & J. WOMEN 21 SIGNS: Gender in Courts, About Resnik, Asking Judith identities); 952 Soc'Y (1996). for Struggle Women Lawyers' D. Law: Black Pratt, Sisters in Carla e.g., See, 28. more for calls racially ("This Essay 1779 1777, L. REV. MICH. 2012 ST. Advancement, accurately more to in an effort lawyers of women experience the into inquiries disaggregated to which and the degree of women of color, challenges and experiences the unique identify
7 INDIANA JOURNAL LAW 93:617 [Vol. 622 as one- discuss women and statistics present will often (has and) Article This because it gender-sometimes and only their will their be gender their commonality the discussion. it simplifies times because other and available the only is information so doing that and acknowledgment awareness a with so full does Yet, the Article 29 presup- and it elite movement, a white, as of feminism narrative perpetuates the and elite women heterosexual white norm is the idea that the perpetuates poses and and sexual orientations, women of different are of color, women exceptions the not are presuppositions narratives and Such class. socioeconomic different women of all in work, how my acknowledge to fail to be foolhardy would but it my intention, impact, Article the potential this the lessen to In an effort problem. a is candor, part of intersecting charac- with how women discuss to possible, endeavor will, whenever done and perhaps not step, is a modest It profession. the legal teristics experience of much introspec- and in time this discussion forward, the moves it Yet, perfectly. on contribution motion is a meaningful forward such feminism, hopes one about tion its own. "Firsts" A. The occurred challenges-have attendant their law-and the in for women Advances easy. has not been quick ascension rather of time. That period short a over relatively entry into highest the to school gaining to going to law the profession From joining women a fight at every step. echelons of practice, had have 3 0 century. the mid-nineteenth in profession the officiallyjoin to attempted Women in was not until 1869, level. national It the local and at both was made effort This to licensed practice woman formally first became the Arabella Mansfield Iowa, that 31 1873, the not women were successful. In front, in On a the national state. law right to have a constitutional women did not held that Court States Supreme United 32 that "[t]he Bradley opined Justice Fourteenth Amendment. the under law practice evidently sex female to the belongs which delicacy and timidity and proper natural lawyer."). woman the of background the upon racial depending vary experiences those FEMINISM UNFINISHED & ASTRID HENRY, LINDA GORDON SUE COBBLE, DOROTHY 29. See & CLASS (1983) RACE DAVIS, WOMEN, ANGELA Y. of feminism); a history (providing (2014) BELL movements); and suffrage feminist first wave of divides and racial class (describing "many that (1981) (noting 145 AND FEMINISM BLACK WOMEN A I WOMAN: AIN'T HOOKS, were oppression sexist least from suffer feminists who class white middle upper and It Getting Feminist Minow, Reason: Martha on all themselves"); attention focus attempting to ED. 47 (1988). It, LEGAL J. 38 Losing and being officially licensed. without men, had like as lawyers many practiced Women, 30. America. in as the first woman lawyer listed often is Brent, from Maryland, Margaret Thus, [https://perma.cc/ http://www.nywba.org/history2 Ass'N, B. See N.Y. History, WOMEN'S id. See to practice law, however. licensed She not was officially X79G-MPXH]. 505-06 (1999). 33 FAM. L.Q. 501, Lawyers in Women Law, Family Raggio, 31. Louise B. the first woman Belva A. Lockwood became "In 1879, were similar. The courts federal the she persuaded Congress to open the of U.S. Supreme bar when the Court to admitted the first woman to argue a case before lawyers. Later she was to women federal courts Court." Id. Supreme v. Illinois, 83 Bradwell 130, 139 (1872). 32. U.S.
8 A 623 FEMPIRE? LEGAL 2018] 33 to the Justice, Indeed, according of civil life." of occupations the it for unfits many and mother," offices of wife benign the noble and "to fulfil were on Earth women 3 4 lawyers. as to serve not and the profession fol- eager to join to practice, women right constitutional Without a the who joined Foltz, like Clara model. Women state-based lowed Mansfield's their to gain entry into respective states worked 1878, their in Bar State in California 35 Ray, who graduated from Howard bars. professional E. Charlotte parochial was admitted to her University bar in 1872, becoming the first School of Law, state lawyer." Lyda Burton Conley was the first Native woman American African to a state bar (Kansas) in 1910, 3 Mary Estella Cota- American woman admitted in 1940,8 and to admitted a state bar (Arizona) first the woman Robles was Latina Chan Loo first Asian American woman admitted to a state bar was Ung Sau the to systems bar utilized their respective state women All these 1942.39 in (Hawaii) of professional practice. gain entry into once if as not is but it their in "firsts" the states, women became These trailblazing in law during this other barriers Women dissolved. practice of law all admitted to the Clara Foltz and their gender. attacks their competency on confronted time consistent special no ask by "I stating, challenges abilities analytical her to off cut famously that those who have had better no fair but favors, I think it only privileges and expect law of merits the upon and on even me meet should ... I ground, than opportunities reference to sex ... 40 incessant everlasting and fact without this and Pheobe Lemma Barkaloo different. was no into law schools Admission Washington to law school, attending first were women admitted Couzins the Wilson admitted and followed law schools soon Other 1869.41 Louis in St. in University (admitting Howard University such as their programs-schools into women Boston and of Michigan 1872), the University graduated in who E. Ray, Charlotte 141 (Bradley, J., concurring). 33. Id. at Id. 34. (1998) 1693 Lawyers, 50 STAN. L. REv. 1689, See Barbara Allen Feminist Babcock, 35. AMERICAN MODERN IN LAWYERS WOMEN LAW: SISTERS IN DRACHMAN, VIRGINIA (reviewing HISTORY (1998)). black woman thought to be the first Prince is Terry Lucy note 28, at 1780. supra 36. Pratt, 13; n. Id. see lay advocate in 1795. acted she a when as Court Supreme the to appear before woman admitted first Ray was the black that Charlotte E. (noting 30 note supra also History, bar the District of Columbia). state to a in note 30. 37. History, supra 38. Arizona Trailblazers: Women and Minority Trailblazers, STATE BAR OF ARIZ., http://www.azbar.org/aboutus/mission-vision-andcorevalues/diversity/arizonatrailblazers/ [https://perma.cc/8D9F-N87S]. Legal 95, Chan, Broke Ung Lum, Sau Loo see also 30; Curtis supra note 39. History, 2002), http://the.honoluluadvertiser.com/ (Mar. 10, HONOLULUADVERTISER.COM Ground, [https://perma.cc/A5Q6-QXLW]. article/2002/Mar/lO/InIn26a.html AM. NEW of a Woman Lawyer, Triumphs and Struggles Shortridge Foltz, Clara 40. 1918, at 4, 15. WOMAN, Jan. and Barbaloo, while gaining 30. Couzins graduated in 1871 note supra 41. History, school. Id bar, did not complete law into Missouri admission the
9 624 INDIANA JOURNAL LAW 93:617 [Vol. University School Hastings 1872, in Law a (after 1878 lawsuit in losing ad- about mitting Buffalo women), Law and School waited schools Other law 1887.42 in few a more Law School and decades. Fordham Yale Law School first admitted women in 1918,3 elite schools like Columbia while other until and Harvard waited 1919 and 1950, respectively." law In have doors the may school, receive not women did but opened, a full- throated example, in welcome. For 1955, Bader Ginsburg was Ruth famously asked by then Erwin Griswold Law Dean Harvard taking could she how justify a coveted 4 5 position from school law the at a Admission qualified man. schools to not the did translate or into male colleagues' professors' acceptance of women equals. as Once in law school into and admitted law practice, the goals became next status within legal profession. the Starting in 1934, women began ascend to into pres- more tigious like federal jobs judgeships. President Roosevelt year, That appointed 46 Florence Ellinwood the to U.S. Allen Appeals. Court of the While appointment was significant, during noting that is it worth the 145 years and through the thirty-one presidents before Allen's appointment, not one woman was appointed judgeship a to 4 7 a federal on court. Moreover, even when Presidents after President Roosevelt appointed women, they at and specifically low did so Men, rates. white men, still dominated the picture. Federal judicial appointments Presidents by Johnson, Kennedy, and Ford, Nixon, for example, exceeded each 98% the men, with appointments of white ranging men from to 96%.48 89% until was It not President Carter that this trend admin- In changed. his 49 istration, 15% approximately his of appointments women. were was (Carter the 5 first president to appoint more than three women to the federal bench.) o Yet, 42. Id. 43. Id. One woman, Alice Rufie Jordan Blake, graduated from Yale Law School in 1886, but her story was a unusual, bit and she only was the to woman from graduate school law the another until graduated woman Judith in 1920. Yale's Schiff, First Graduate, Female YALE ALUMNI MAG. (Sept./Oct. 2013), https://yalealumnimagazine.com/articles/3742/yales-first- female-graduate [https://perma.cc/9B3A-2N2D]. 44. supra History, 30. note 45. HIRsHMAN, LINDA SISTERs LAW IN (2015). 15-16 46. Mary L. Clark, Man's One Another Token Is Woman's Breakthrough? The Appointment of First Women Federal the REv. 487, 487 (2004); 49 VWL. Judges, L. Lynn Hecht Schafran, Not from Casting: Central Amazing The Women of Rise in American the Judiciary, 36 TOL. U. REv. 953, L. 964 n.56 (2005). Allen Judge While was first woman the be to federal a appointed to position with court lifetime tenure, not she first was the judge appointed federal a to of court general jurisdiction. Stubbs, note supra at 101. 14, Genevieve Cline was Rose lifetime appointed with to tenure the Customs U.S. Court by President Id. Coolidge. 47. supra Stubbs, note 14, As 99. at noted above, some been women had appointed to specialty federal courts, one but not had woman appointed been to a federal of general court jurisdiction until 1934. at 48. See id. 103-06. at 106. Id 49. 50. Id.
10 FEMPIRE? A LEGAL 625 2018] judicial appoint- his 8% of making only patterns, prior returned to Reagan President 51 only of color, between 1789 and 1976, women. With respect to women to ments Constance Baker bench: Judge federal to the appointed woman was of color one appointed President Carter in 1966.52 Johnson by President was appointed Motley took but Latina, Reagan similarly President American women one and African seven one and woman one American African by appointing only few steps backward a Latina his two terms." during has battleground another professional appointments, to judicial federal In addition the attended law school and began entering As women partnership. law firm been ma- at the partnership ranks into to break started some numbers, larger in profession Gates) K&L (now Gates in Preston Seattle in the 1950s, For law firms. jor example, 54 to partner. That a Northwest in to the elevate woman was allegedly the firm first partnership its in name woman's a to include first firm the was it that firm also claims inter- major a & Elkins, Vinson ranks.ss partner its joined Fletcher when Betty title elevated Carol E. it in 1979 when partner woman its firm, made first law national 5 6 Dinkins. women began to century, and mid-twentieth the late nineteenth In sum, between a completely white, male-dominated previously into what had been make headway steps forward, two of something a had meaningful, headway, while profession. That achieve on how to call for new thinking an to important back effect, leading one step equity. gender Force Studies Bias Task B. Gender accepted not women were still the 1980s, as late as progress, Despite meaningful but as women grown, have Their numbers may profession. legal the members of progress their and also see field, they could recognize the in prominent became more In for them. and the law intersected of gender how the shortcomings quite starkly bring into different groups to began challenges, women to organize response to these to these infirmities. more attention the National collaboration between a started with movement well-known One Their of Women Judges." Association and the National for Women Organization The courtrooms. in their discrimination gender about judges educate to goal was judicial appointments). Part II.A (discussing modem at infra 51. Id. see 106-07; Black the 1st Jr., Who Were Henry Louis Gates, see also 14, at 104; note supra Stubbs, 52. http://www.theroot.com/who-were- AM), (Sept. 29,2014, 3:00 RooT Judges?, Court Federal [https://perma.cc/RH4H-ACHM]. the-I st-black-federal-court-judges-I1790877204 supra note 14, at 106-07. 53. Stubbs, Unique Seattle Group Slots at to Top Practice Ascend Zanders, Women Katharena 54. L. May 1997, at 18. Firm, OF 5, COUNSEL, Id. Fletcher. & Ellis Holman Preston Thorgrimson called firm 55. The was Honorable The in Houston: Attorneys Women Blazing Trails for Judithe Little, 56. 31. at 2016, Hous. May-June LAW., Dinkins, CarolE. Dineen King and Carolyn the and Federal Jurisdiction, Gender: Women, Without "Naturally" Judith Resnik, 57. Elizabeth & Bowman Grant Cynthia see (1991); also 1684 1682, REV. L. Courts, 66 N.Y.U. 67 Profession, Legal the Lawmaking, and Feminist Theory, Legal Feminist M. Schneider, forces). bias task gender the 260-63 (1998) (discussing L. REv. FORDHAM 249,
11 INDIANA LAW JOURNAL 626 93:617 [Vol. movement became colloquially known "Gender as Forces."ss Bias Task task These forces attempted not light shed to profession, on just the all on but of aspects how women were treated within the legal system, but not including, domestic limited to, 9 violence, divorce, and parental custody. courts State pathbreaking were their in creation gender of forces. bias task New Jersey was first the state to a assemble task force 1982.60 in states followed Other lead, that with thirty some states adopting them 1990.6' by Federal were courts no- 6 2 ticeably reluctant to follow for some states the It was time. until 1990 that not the Circuit D.C. first became the federal circuit establish task to a force "gender, on race, 6 and ethnic The bias." Ninth ' followed Circuit circulated and of preliminary draft its in results .' In all, eight federal circuit courts eventually adopted bias gender 1 9 9 2 65 of their sister circuits task forces, leaving four behind. 6 Each of the and state courts federal approached work their differently. For ex- ample, the Ninth Circuit task force bias on gender "decided to impose not definition a supra Resnik, 58. 1684; note 57, at Jeannette also see Gender F. Swent, the at Heart Bias ofJustice: Empirical An Study of State Task S. Forces, 6 L. REV. CAL. & WOMEN'S 7 STUD. 1, (1996) the (discussing origin the of gender movement). force task The National Judicial Project, Education the by founded Defense Legal and Fund Education of the National Organization worked Women, of with the National of Women Association Judges to educate judges about in their gender discrimination 57, supra Resnick, courtrooms. note at 1684. Swent, 59. 58, note supra 55-62. at 60. N.J. COURT SUPREME ON TASK FORCE IN WOMEN THE FIRST THE COURTS, YEAR REPORT OF THE NEW JERSEY COURT SUPREME ON FORCE TASK WOMEN COURTS-JUNE THE IN (1986), reprinted 1984 in L. RTs. WOMEN's 9 REP. 129 (1986). 61. Swent, supra note 12-16. at 58, Resnik, 62. note supra 25, at 2197. 63. Report of the Special Committee on Gender to The D.C. Task Circuit on Force Race, Gender, and L.J. GEO. 84 Ethnic Bias, 1666 (1996). 1657, Ninth 64. Circuit Task on Force Bias, Gender Executive Summary of Preliminary the Report the of Ninth Circuit Task on Force Bias, Gender L. STAN. 45 REv. 2153, 2154 (1993) [hereinafter Ninth Circuit Executive Summary]. 65. The of District Columbia the only was federal other take to court a on such as study of between but 1993, 1990 and 1994 eight of the twelve federal circuits set up forces. task Schafran, Hecht Lynn Inquiry Will Produce Action? Effects the Studying Gender of in the Courts, Federal U. 32 L. REv. RICH. 621-23 615, 615, (1998); see, e.g., David Ebel, M. Tenth Circuit: Bias Gender Study-Continuing Education and Training, RICH. 32 U. L. 745 REv. Eighth (1998); The Fairness Circuit Gender Task Force, Report Recommendations Final & of the Eighth Fairness Circuit Gender Task Force, REv. CREIGHTON 31 L. 9 (1997) [hereinafter Eighth Gender Circuit Fairness Task Eleventh Force]; Circuit: "Executive Summary"- of Report Eleventh the Circuit Task Gender on Force Bias, RICH. U. L. 32 751 (1998); REv. Sharon E. Grubin M. John & Jr., Walker, Report ofthe Second Circuit Force Task on Gender, Racial, Ethnic and Fairness the Courts, 1997 in ANN. SuRv. AM. 9 Ninth L. (1997); Circuit Executive Summary, supra note 64; Gregory A. Nussel, Fifth Circuit: Study of Gender Bias, U. 32 RICH. 723 REv. L. Samuel (1998); Phillips, W. Circuit: Fourth Judicial The Council's Review the on for a Need Gender Bias 32 Study, U. RICH. L. REv. (1998); 721 the of Report Committee Special Gender to on the D.C. Circuit Task Gender, Force on Ethnic and Race, supra Bias, 63; note Bruce M. Selya, First Circuit: of A Study Gender Bias in andAround the RICH. L. REv. 647 (1998). Courts, 32 U. 66. Cf Ninth Circuit Executive Summary, note supra at 2154. 64,
12 627 FEMPIRE? LEGAL A 2018] 67 it Instead, se." per bias for look to system nor federal in the bias' 'gender of 68 direct more took a New Jersey gender." of "effects the it called for what searched "investigate out to reaching Circuit, Ninth the than study gender its with approach 9 6 out inquir- left task forces all of the Almost exists." bias gender to which the extent 7 0 intersect. might and gender how race briefly-into inquired only ies-or over- findings and inquiries their approaches, different forces took task the While and defendants litigants female how examined most For example, quite bit. a lapped discrep- many found studies the and narrative, of data mix a Through were treated. vio- domestic trivialized Courts regularly treated. were parties female how in ancies in spouses dependent to economically fees attorneys' lower awarded cases, lence gender- higher, a cases to custody child in women and held proceedings, divorce 7 how fe- assessed the studies many of ' Similarly, behavior. of standard stereotyped 72 wanting. found was the treatment There again, treated. were court personnel male interest, great of are undoubtedly personnel and parties court about findings The legal female on instead is focus The narrow Article. this of the scope beyond are but studies, over forty were There the courts. experienced they how and professionals I Instead, infeasible. reports force the task of review a comprehensive makes which seven states representing reports and federal state of cross-section a have selected 73 of these scope and approaches the of different In spite circuits. federal and two of underrepresentation the (1) findings: pertinent two at they all intersected studies, sexism. (2) rampant and positions legal professional in women Numbers The Judges: and as Lawyers 1. Women the below well still is) was (and judges and lawyers of percentage a as Women task the of in each was true This population. general the in women of number relative general the below how far just was forces the task for question The real reports. force averages-each the national below far how just cases in many population-and be. would prac- the attorneys of only 12-19% were women in 1997, Circuit, the Eighth In 74 approximately was time that at percentage national The courts. in federal ticing judge- federal the 13% of holding only women with no better fared Judges 23%.71 women held by being judgeships of federal 18% to almost relative circuit the ships in 76 the on judges 149 total of the numbers, stark even more in it put To nationwide. bench Eighth the in Circuit in 1997, only woman one served on of the court appeals, omitted). (emphasis Id. 67. omitted). (emphasis Id. 68. omitted). 10 (emphasis note 58, at supra 69. Swent, studies that "separate worried members force task that some (noting at 78-81 id. See 70. depth"). significant any in unexplored gender and race/ethnicity of intersection the left had at 56-61. id. See 71. at 61-62. Id. 72. 73. The Article reviews the Eighth and Circuits, Ninth as well Florida, as Michigan, and Washington. York, Utah, New New Jersey, Missouri, 43. at 65, note Force, supra Task Fairness Gender Circuit Eighth 74. 75. Id. 40-41. Id. at 76.
13 628 INDIANA JOURNAL LAW 93:617 [Vol. the seven federal in district bankruptcy the courts, in four court, magis- as seven and 77 judges. trate Similarly, force the Circuit, Ninth the in task women that found were underrepresented grossly on the bench: the courtroom and in Only law- 16% of the federal practice yers in 12% and percent of federal judicial Ninth positions in the 7 8 Circuit women. were courts fared State better. In 1993 no women in Missouri, made up only the 8% of nationwide while judiciary, state filled between women 10% elected the of 15% and 7 and judgeships. appointed of the ' Women were only 23% 43% lawyers, but of law students 53% of the and nationwide.so population general like Utah Other states 8 women. ' only were 7% of judges record, its that of 90 found gender Across the board, the force studies found task bias women were that not law or serving practicing numbers judges as commensurate in with pop- general the spite the progress of In ulation. had been made that the by was "firsts," there still toward quite a way to go true equity. Sexist 2. of Treatment Women Of women who had the profession, the next made it into the of question for many the task studies was force treated? those were how women answer was not en- The couraging. of the task All work consistently found that force and colleagues male judges behaved boorishly in interactions attorneys. with female the Even task forces 82 themselves the were of sexist subject rebuff. skepticism and the When Jersey New task sent out force survey, its attorney it immediately the discovered challenges ahead. were Scrawled the surveys on is as such [gender "[w]hat comments bias], a disease?," you wasting are "[w]hy the taxpayers' money," and "[d]on't you have girls anything to better your time?" do with This response to task the force work mirrored realities in courtrooms, chambers, and In law offices across country. the Task the Report of the New York on Force Women then-Attorney in the Courts, the attorneys stated General that "[m]ale not do at 36-40. Id. 77. 78. Ninth Circuit Executive Summary, supra note 64, at 2157. Report 79. the of Missouri on Force Task and Justice, Gender Mo. 58 L. REv. 485, 683 (1993). 80. Id UTAH 81. FORCE ON TASK GENDER JUSTICE, & REPORT THE UTAH TO COUNCIL JUDICIAL 69 (1990), http://digitallibrary.utah.gov/awweb/awarchive?type=file&item-81132 [hereinafter UTAH Utah's then-Governor TASK FORCE]. forty-two Bangerter made H. Norman judicial appointments between and 1985 January 1989, but only March appointments those of three women. were at Id similarly states Other 70. found underrepresentation of women judges and as lawyers. MICH. See COURT SUPREME ON FORCE TASK ISSUES GENDER IN COURTS, THE CONCLUSIONS AND RECOMMENDATIONS (1989), 18 https://www.michbar.org/file/programs/eai/pdfs/regtf 1989 part3.pdf [https://permacc/M929-UUFJ] (discussing underrepresentation the women of legal the in field) [hereinafter SUPREME MICHIGAN FORCE]; TASK COURT REPORT OF THE SUPREME FLORIDA COURT GENDER BIAS STUDY COMMISSION (1990), 30 http://www.floridasupremecourt.org/pub info/documents/bias.pdf [https://perma.ec/454J-5ZGS] (finding women were that underrepresented partners, and tenured law faculty). as law judges, 82. Ninth Executive Circuit Summary, supra 2157. note 64, at note 58, at 10. supra 83. Swent,
14 629 FEMPIRE? A LEGAL 2018] the way that courtroom" into the gratuitously brought or their lives gender have their 84 being attorneys regularly manifested in female do. This difference attorneys female remarks were humiliating sexual lady."" Blatant and or "dear" "young to referred as [her] "put would that he attorney a threatened female the norm. In one case, a judge him." with disagreed strongly because she [her]" spank and knee [his] over some form of attorneys reported of female percent Circuit, sixty In the Eighth com- of address, offensive "gender-based including unprofessional forms incivility," a mistaken for being and and jokes comments, appearance, off-color ments about in Justice and on Force Gender Task State Similarly, Washington the non-lawyer." female lawyers by making male determined that demeaned attorneys Courts the "young "dear," like patronizing terms or first names by remarks using openly sexist 8 8 in personal appearance. about making gratuitous remarks by and lady," or "girls," judges ignored by male being snubbed or also reported female York, lawyers New 8 1 attorneys. and on quite differently were treated Women discouraging. the findings were Overall, intimidating. and was offensive often treatment that and gender, of their the basis these between note there must be a relation that not help but could The task forces lawyers as numbers of women serving low the relatively behaviors attitudes and and judges. and Recommendations Force Task C Gender Bias of recommen- list a most compiled data, their had all task forces various Once the task court state were treated, women way the address To improvement. for dations and on bias programs education judicial suggested in York New those forces like be- gender-biased address would that conduct professional of rules the to changes fo- efforts educational also recommended Force Task Circuit Eighth The havior.' curriculum on law school including a focus issues," civility on "gender and cused from ranging action suggested court studies circuit Other federal education."' bar and of establishment the to court rules, of local adoption the training, to and education 2 9 bias. gender to attention study and continuing to dedicated committees circuit-level bench, and on the women as lawyers representation of the inequitable To address With respect on active recruitment. focused recommendations made task forces also URB. FORDHAM L.J. 15 in the Courts, Force on Women Task the New York of 84. Report (1986). 11, 128 130. 85. at Id. 133. at Id. 86. 132-35. at 65, supra note Force, Fairness Gender Task Eighth Circuit 87. GENDER AND FORCE ON STATE TASK WASHINGTON THE OF SUMMARY 88. EXECUTIVE (1989), http://www.courts.wa.gov/committee/pdf/ 24 REPORT FINAL THE COURTS IN JUSTICE [https:// Gender/o20and%20Justice%20in%20the%20Courts--Final%20Report%/201l989.pdf perma.cc/4C7C-UGKV]. 141-42. at 84, note Courts, supra in Women the on New TaskForce York the of Report See 89. id. 162-65. See 90. at 169. at 65, supra note Task Force, Fairness Gender Circuit Eighth 91. at 636-37. note 65, supra Schafran, See 92.
15 INDIA LAW JOURNAL NA 630 93:617 [Vol. stone to judicial appoint- committee a stepping and advisory groups (really court to women to more recommended encouraging Task Force Eighth Circuit the ments), and, to be appointed to those for the apply relatedly, for more positions women 93 required and appointments structural The to applications increase groups. changes elaborated upon. not were numbers of female Similarly, the Missouri task force focused on the low judges the lawyers believed that gender bias prevented surveyed many that found and of lack of formal judges consistent criteria for evaluating from being elected and a or an selection process by court commission- judicial candidates contributed to unfair 94 ap- both the election and reforming task recommended ers. force In response, the to court pointment creating processes by providing better training commissioners, transparency) to govern nominating commissioner greater (encouraging rules ethical exploring ways to processes, standardizing the appointment process, and increase to prospects." outreach and recruitment efforts female It found less recommendations. ambitious, force made task similar, albeit Utah's questions that inappropriate nominating commissioners often asked regarding the 96 candidates' willingness to travel and their emotional state. To respond to issue, this 9 7 task force the education programs recommended members. for the commission it also recommended and court judges sitting that qualified administration "encourage 9 8 apply." to women from Missing task most the gender bias of was studies force a consideration of intersecting class, factors women-race, many for and orientation, for exam- sexual studies self-consciously chose to forego a ple. of those Some of the consideration gender." task forces did not appear Other be quite as focus solely on to factors to of the self-aware. Indeed, force movement advocated for an essen- the creators task to studies." In the gender bias task force "manual," members tialist approach the "deal encouraged only" or risk "overload and confusion" if were with to gender bias issues."o' The of not considering race and other intersect- study to trying other price it leaves is identities ing that administrative data thought or little how these about affected intersecting factors law practice women in the of during these of time the 93. Task Eighth Circuit Gender Fairness at 168-69; Force, supra note 65, also see MICHIGAN COURT SUPREME FORCE, TASK supra note at 18-19 81, (encouraging the active recruitment and appointment women of leadership positions). Report 94. Force on Gender the Missouri of Task note at 694-95. and Justice, supra 79, 707, 710. id. See 95. at supra note 81, at 96. UTAH TASK FORCE, 71. at 97. Id. 73-74. 74. Id. 98. at Task Supreme Court Gender Issues in the Courts 99. Michigan Force For example, the on creation the to led of parallel task a force on race, The Task Force on Racial/Ethnic Issues in MICHIGAN the Courts. See SUPREME COURT TASK FORCE, supra 81, 1. note at The first 100. National Judicial Education Program director, and Norma J. Wikler, her friend York lawyer Lynn colleague, and New a "guide" Schafran, Hecht created for how to conduct gender bias task force studies. See LYNN HECHT SCHAFRAN & NORMA JULIET WIKLER, FOR ON GENDER BIAS IN THE COURTS: A MANUAL FORCE ACTION (1986). TASK OPERATING A at 6. Id. 101.
16 FEMPIRE? 631 LEGAL A 2018] in this invisible women many noted-made commentators many This-as studies. process. and gov- education increased encouraged efforts task force the however, Overall, recom- also task forces Many broadly. gender to respect with least at efforts, emance of context the in efforts and study to continue committees enduring creating mended heightened a to led arguably movement force bias task gender The equity. gender in changes concomitant and some realm legal in the issues of gender consciousness been. has that effort effective is how question The equity. gender of favor WOMEN & LITIGATION COMPLEX II. MODERN 0 2 1 ago. forty years nearly numbers larger in school law attending began Women per- forty the crossed first students law first-year female of percentage the In 1985, 0 3 number that around hovered and has percent fifty crossed it 1996, By mark.' cent work force task bias gender the concentrated of most time, that Around since.'" ever the for show to we have do what later, years twenty Over end. an to also come had will begin Part This ever before? than school law attending are women more that fact modem in judges and lawyers as women on focusing by that question answer to 0 ' litigation. in multidistrict specifically more and litigation, complex Litigation on Multidistrict Panel A. Judicial judges of panel elite is an (JPML) Litigation on Multidistrict Panel Judicial The resolved.o' be uniformly can issues pretrial so that cases related who consolidate are ap- who judges court district and circuit federal seven of consists The JPML 07 The Court.' Supreme States United of the Justice Chief the by panel the to pointed the and device consolidation the created that statute (MDL) Litigation Multidistrict 8. 13, at note supra GAP, GAVEL See 102. Id. 103. Id. 104. money of the most is where that because sector private the on focus will The Article 105. interest public in value exceptional course, of is, There is found. practice law in prestige and Not different. markedly is work that with associated status economic and the social yet, work; when work interest public to dominate tend color of women and women white surprisingly, Dual with Coping Lawyers: Women Black Burleigh, Nina See to men. compared women black of percent "forty-eight that (noting (1988) 67 64, J. ABA 74 Discrimination, Legislation Brudney, J. James also see law"); interest public or government into go lawyers n. 19 8 3, EDUC. LEGAL J. 65 Necessity?, a or Virtue A Curriculum: Core the in Regulation and TASK THE OF REPORT THE BAR, TO ADMISsIONS & EDUC. LEGAL OF SECTION ABA (citing (2015) smaller ("A (1992)) GAP THE NARROWING PROFESSION: THE AND SCHOOLS LAW ON FORCE percentage higher a while private practice, are in men than lawyers women of percentage Cynthia positions."); interest or in public associations, for private government, in practice Lawyers Women on Downturn the Economic of Impact The Kolker, Abigail & Epstein Fuchs gender the that (noting (2013) 1190 1169, STUD. LEGAL GLOBAL IND. J. 20 States, United the in [are] lawyers of women number disproportionate "a that fact to the in part, is gap due, pay work)"). government or interest as public (such sphere not-for-profit in the working 2017). Supp. West & 2012 (West 1407(a) § U.S.C.A. 28 106. 1407(d). Id § 107.
17 INDIANA JOURNAL LAW 93:617 [Vol. 632 two years after the modem class action rule (Federal Rule adopted was JPML only created.ios 23) Civil Procedure (FRCP) of While was a had litigation multidistrict start procedural slow as a device-especially when compared actions under to class its adoption-multidistrict during FRCP 23 the first few decades following litigation universally considered is now most the of some of the locus important cases both words, multidistrict litigation is the new monetarily and structurally." In other 0 black, third with than a more federal pending of consolidated cases into MDLs.I' Thus, to appointment an and attendant power JPML the the make decisions about to consolidation is a strong that sign one the top near is her profession."' of judicial constituted in 1968; it was not surprisingly made up of The first JPML was seven 2 white judges." male remained an It all-male panel when 2000 until Judge Julie Smith Gibbons became the first woman appointed the to panel.'" Four years in later 4 2004, second woman, a Kathryn Judge appointed." H. Vratil, was slow The pace of progress up picked in 2010, starting with the appointment Judge of Barbara S. Jones."' Her appointment appointment ushered in the additional four of female judges between then and 2014: Judges Sarah Vance, Rendell, S. 0. Marjorie Ellen Perry."16 D. and Catherine Huvelle, Segal 108. rule, The modem class action adopted 1966. The FRCP 23, was in was statute MDL adopted in 1968. See U.S.C. 28 1407 § (2012); Judith Resnik, From "Cases " to "Litigation," CONTEMP. LAW 54 & PRoBs. 29 5, (1991). 109. Facilitative Judging: Jaime See Dodge, Organizational Design in Mass-Multidistrict Litigation, EMORY 64 L.J. (2014) 329, 331 "multidistrict that (noting litigation has (MDL) profoundly important taken on a aggregate role in not just the litigation system the also but as whole"). judiciary a number 110. The cases pending of to MDL proceedings subject as of September 30, 2014 U.S. 127,704. was PANEL JUDICIAL MULTIDISTRICT ON LITIG., STATISTICAL OF ANALYSIS MULTDISTRicT LITIGATION FISCAL 2014 YEAR http://www.jpml.uscourts.gov/sites/ (2014), jpml/files/JPMLStatistical%20Analysis%20of/o20MultidistrictO/o2OLitigation _2014.pdf [https://perma.cc/H7R9-8MDE]. total number The pending of civil cases that during same time period was 337,302. U.S. District Courts-Judicial Business 2014, U.S. COURTS tbl.3, http://www.uscourts.gov/statistics-reports/us-district-courts-judicial-business-2014 [https:// perma.cc/2JHL-HCUU]. See 111. Elizabeth Multidistrict Burch, Chamblee Judging REv. Litigation, N.Y.U. L. 90 84 71, litigations are (2015) ("Multidistrict plum involve they assignments; judicial interesting media attention, facts, nation's most and some of the talented attorneys."). CURRENT 112. AND FORMER JUDGES OF THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION, http://www.jpml.uscourts.gov/sites/jpml/files/CurrentFormer_ Judgesofthe%20Panel-10-9-2015.pdf [https://perma.cc/K2V6-3VHJ]. Id. 113. Id. 114. 115. 2016, In Judge Jones retired from the bench join to a white collar defense law firm, Bracewell. See Barbara Jones and Paul Shechtman Bracewell, Join REP. CORP. CRIME (May 2016, 9, 12:30 PM), http://www.corporatecrimereporter.com/news/200/barbara-jones-paul- schectman-join-bracewell [https://perma.cc/48A2-3RNG]. 116. CURRENT AND FORMER JUDGES OF THE UNITED STATES JUDICIAL PANEL ON supra note 112. MULTIDISTRICT LITIGATION,
18 633 FEMPIRE? A LEGAL 2018] the that the Panel has been in existence, fifty judges have served, fifty In years 7 8 of and These women are white." " The lack of only those seven have been women.' racial diversity and the paucity of women on the JPML is quite discouraging. Yet, Sarah Vance, first chaired by a woman, Judge the and for the the for time, Panel is is majority women with four female judges and three male first time, the Panel 9 judges." of up sitting federal judges, so an inevitable made is The JPML necessarily As dis- his appointments? choose Justice Chief does the question is from whom not if there are federal bench, and judges to the appoint Presidents earlier, cussed the JPML simi- least one aspect this why at is of many women to choose from, as larly underrepresents women. Women make up only 26% the of federal judiciary, traced to the presidential appointments to the and this underrepresentation can be 12 0 discussed earlier, it was also until President Roosevelt As judiciary. federal not Carter until President not and the to appointed first federal bench was that woman a moderately significant num- asked as federal judges in to serve that women were bers.121 that have structural roots on the federal bench has women deep of Thus, the lack concerted making a effort to modem by to change Presidents recently begun only Even then, however, the progress seems glacial. President appoint more women. 122 President were almost 20% women. Bush's H.W. federal appointments George of his exceed 20% by making almost 28% was to the President Clinton first Bill 123 not meet President George W. Bush did appointments to judicial women. federal to judicial 22% of his federal appointments he made numbers, but still Clinton's 4 2 by mak- be the strongest imprint appears to Obama's President Barack women.1 25 In his first five years of to women.1 appointments judicial of ing 42% his federal Reagan, H.W. appointed more than Presidents women office, President Obama 26 stalled under now- completely has progress This Bush combined.1 W. Bush, and 117. Id. Gibbons, WIKIPEDIA, 118. Gibbons Julia Smith https/en.wikpedia.org/wild/JuliaSmith SegalHuvelle, ALCHEIRON, https://alchetron.com/EIlen-Segal- Ellen [https//permacc/ZQG9-9Z4E]; https//bracewell.com/ S. BRACEWELL, Barbara Jones, Huvelle [https://permacc/ZCQ3-DHSS]; D. Jennifer Judge Catherine I. Salopek, [https://permaccIE3HM-53KG]; people/barbara-s-jones and oF 2016), https//home.insofcoiutorg/AIC/Awards Cr. (Sept/Oct Peny, INNs AM. JudgeCatherine Scholarships/ProfessionalismAwards/ProfessionalismAwardsRecipients/2016 Rendell, DUANE Judge MArorie 0. Perry.aspx D. [https//perma-cc/MFA4-MA469type-image]; MORRIS, https://www.duanemorris.com/site/alumniprofiles rendell.html [https://pennacc/W63P- https://www.ali.org/members/member/100864/ Vance, AM. L. INST., S. Sarah Hon. The MH7S]; Kathryn JD, U. KAN., https//emilytaylorrenter.kuwedu/ [https://permacc/GST8-ZASR]; Vrati, womens-hall-of-fame/vratil-kathryn [https//permacc/6V35-JQ3R]. Judges, supra 119. 3. Panel note Stubbs, note 14, at 117. 120. supra supra Part 121. See I.A. 122. supra Stubbs, See 14, at note 107. 123. at Id 108. President Clinton appointed the first Asian American woman to bench, the Mollway. Id. Susan Oki 124. Id. 125. Id 126. Id at 109.
19 JOURNAL LAW INDIANA 93:617 [Vol. 634 Trump's nomina- of only 19% November of 2017, As J. Trump. President Donald 1 27 his nominees are Only 9% of judiciary are women. federal tions for the 28 1 is he other elite making to the appointments These parallel numbers nonwhite. 2 9 Attorney.1 the U.S. of offices the and his Cabinet as such positions is that they create the pool of judicial appointments federal of implication The like JPML. Perhaps that positions why more candidates available for of power is Justice the Panel. However, the Chief to have been recently appointed judges female discretion appointments, regardless of the available has full those in still making trend appointing women to the federal bench begins more the if Moreover, pool. of under the current administration-it is not clear what wane-as is already the to case future appointments to panel. impact that will have this on 30 Finally, not one woman of color has been appointed to the JPML to date. Again, women of sitting currently the 347 traced, the pool: available part, in to can this be 3 27%) women of (or color.' ' While President Obama as federal judges, only 94 are it color to the federal bench, of may of appointments more women significantly made Justice Chief the part of the pool become to those appointments for take a while given the of heterogeneity benefit Yet, as will be discussed in Part 111.B, considers. he legitimacy, something it is benefit to the systemic making and in decision group 3 2 away.1 straight consider should 127. Trump's Federal Judge Picks Lack Diversity So Far, With Many Vacancies to Fill, http://www.nola.com/national-olitics/2017/11/ TIMES-PICAYUNE, (Nov. 14, 2017), ("The AP reviewed 58 [https://permarcc/75JP-V3P3] federaljudgepicks trumps les.html nominees on appellate and district courts, as well as the Supreme Court, to lifetime positions end October. Fifty-three are white, three are Asian-American, one is Hispanic and by the of Senate and 11 women. Thirteen have won men are 47 African-American. There is one approval."). 128. Id. and male. Jasmine C. Lee, Trump's Cabinet So 129. is His overwhelmingly white Cabinet Far Is More and White Male Any than First Cabinet Since Reagan's, N.Y. TIMES 10, (Mar. 2017), https://www.nytimes.com/interactive/2017/01/13/us/politics/trump-cabinet-women- the minorities.html of the U.S. [https://perma.cc/3CYC-YAL9]. His appointments to offices Of the forty-two people he Attorney nominated for U.S. Attorney, only are no different. has Joan Trump Has Nominated 42 People for U.S. Attorney. Only One one is a woman. Biskupic, PM), 12, 2017, 4:24 http://www.cnn.com/2017/09/12/ CNN POLITICs, is a Woman, (Sept. politics/us-attorneys-one-women/index.html [https://perma.cc/YRF4-L282]. supra 118. See 130. note supra 14, at 117. Stubbs, See 131. note not appear that there is any work on the 132. of transferee It does demographic makeup is hard to imagine, judges. It not JPML-trasferee that-like however, the are judges least, as a whole. Anecdotally at federal the demographic of the similarly judiciary reflective men. The most notable recent MDL makeup may be even more skewed toward white cases- Toyota, example-were all adjudicated by white male for See In re and Vioxx, VW, judges. Mktg., Sales Practices, & Prods. Liab. Litig., 148 F. Volkswagen 3d "Clean Diesel" Supp. re Toyota Motor Corp. Unintended 2015) Charles R. Breyer); In (Judge (J.P.M.L. 1367, 1369 1379, Litig., 704 F. Supp. 2d Prods. 1382 Sales Practices, Liab. Acceleration Mktg., & (J.P.M.L. 2010) (Judge James Selna); V. In Vioxx re Prods. Liab. Litig., 360 Supp. F. 2d 1352, (Judge Eldon E. Fallon). (J.P.M.L. 1354 2005)
20 635 FEMPIRE? A LEGAL 2018] Transferee Judges B. which district to decide it must then a case, to consolidate decides JPML Once the transferee the judge has a Like the JPML, should be transferred. the judge court case appoints generally The judge of the litigation. trajectory impact on the meaningful of great a deal disputes, and exercises pretrial resolves leadership teams, the legal is judge a transferee as appointed for settlement. potential Being the over influence court m district of an Article in the life achievement as considerable a viewed largely judge. reflective judges is of transferee gender composition the current Unsurprisingly, of district U.S. active of July 2016, 33% As profession. areas legal the of of other elite 33 simi- that pool-a that-given expect one Thus, might were women.1 judges court positions. appointed to transferee judge be female would judges of percentage lar MDL 2017, there were 236 active of April As expectation would be wrong. That 34 r 46 186 judges, those Of transferee judges.1 186 being handled by dockets 3 of an underrepresentative number already words, women.' other In 1 25%-were after and sought a decidedly once there is further is compounded judges court district line. transferee on the judge like position an MDL elite Litigation C. MDL consolidated cases are the deciding which of judges composition the Related to composi- the is cases those adjudicate judges which and litigation multidistrict into cases. Once the lead those more important, and who litigate, the tion of lawyers case, the transferee judge-the judge and transfer a to consolidate JPML decides a great deal of authority and entire the consolidated cases-has lot of presiding over law- team of plaintiffs' appointing the includes cases, many power, That in power. 36 because are plum ones leadership positions These will lead the litigation.' who yers case the how to make strategic decisions about the power comes a such with position are likely to ne- MDL the leading lawyers litigation will proceed."' Moreover, the 3 8 fees.' attorneys' and related potential settlement gotiate any surpris- not and fierce, again is positions for leadership these The competition found study recent A men. lawyers are appointed the time white of ingly, the most FEDERAL IN THE WOMEN AND THE JUDGES COURTS: CTR., LAW 133. NAT'L WOMEN'S 1 (2016), https://nwlc.org/wp-content/uploads/ To Go WAY A STILL LONG JUDICIARY: [https://perma.cc/C3L7-85TT]. 2016/07/JudgesCourtsWomeninFedJud7.14.16.pdf BY DISTRICT MDL PENDING DOCKETS OF REPORT-DISTRIBUTION STATISTICS MDL 134. ByDistrict- Dockets (2017), http://www.jpml.uscourts.gov/sites/jpml/files/PendingMDL April-17-2017.pdf [https://perma.cc/VXG7-RCZ3]. 135. See id. Dodge, supra note 109, at 355-56. 136. See Complex Women Plaintiffs' Lawyers Becoming Julie Steinberg, See More 137. A. BNA 3, 2107), https://www.bna.com/women-plaintiffs-lawyers- (Feb. Litigation Leaders, Alvare Dana by study unpublished (citing ] an [https://perma.cc/KR2P-VF9N n57982083338/ of School Law). Justice University Social at the Temple Sheller Center the at for See supra note 111, at 81. 138. Burch,
21 INDIANA JOURNAL 636 LAW 93:617 [Vol. all only 16% of plaintiffs' MDL lead- 2011 made up women and 2015, between that 1 3 9 in is that the number of women news somewhat The positive ership appointments. this time.'" Women held only 13.5% steadily increased has during leadership MDL stead- of 2013, that percentage has 2011, but in roles the exception with leadership of 41 study found that in 2015 women held over 27% ily the grown each year.1 of The 2 4 MDL leadership positions.1 The however. rosy, all Within not is news MDL further is there leadership, strat- ification. leaders-those There are the "Tier 1" essentially lawyers function who as serve lower-level counsel-and func- lead "Tier 2" leaders-those who leadership 143 women 2015, and 2011 cases between MDL study same the to of tions. According held only leadership roles and 19% of Tier 2 leadership roles.'" 15% of Tier 1 In addition, almost 50% of cases did have not any women in Tier 1 leadership roles, 5 4 male attorney at while level.' 98% of Worse still, 63% cases had at least one that 46 not cases did of positions at either tier level.1 have any women in leadership results. Elizabeth one study, these Burch examined the phe- Other studies echo In 47 multidistrict litigation.1 in and individuals firms law repeat-player of nomenon liability and sales-practices multidis- product from collected data Burch seventy-two as of trict 2013.148 She found that certain "repeat play- litigation cases pending May to leadership positions in the litigation. More specifi- regularly appointed were ers" the available leadership roles were occupied by cally, elite group of fifty 30% of an 49 were named lead attorney in five or more multidis- attorneys.1 Those elite lawyers litigation trict cases then pending.'s those premier Of only attorneys, fifty eleven- 5 0 ' women.' 22 /-were or note supra Steinberg, 139. 137. 140. Id. 141. Id. Id. 142. 143. Id. 144. Id. 145. Id. sample of are no different One study looked at a MDL of forty- actions Class Id. 146. outside A. SCHARF & ROBERTA eight LIEBENBERG, FIRT CHAIRS AT TRIAL: class actions. See STEPHANIE D. SEATS THE TABLE 12 (2015), https://www.americanbar.org/ MORE WoMEN NEED AT content/dam/aba/marketing/women/firstchairs2015.authcheckdam.pdf [https://perma.ccD64W- found that forty-seven cases had at least one male It counsel, while thirty- lead of those 9CV9]. did of four the cases listed not lead women any have as all of the counsel. Id. Counting attorneys in this sample who filed appearances that cases men 68% of revealed were 32% and Id. were women. 147. See supra Burch, 111, at 71. note 148. Id. 95. at 149. 96. Id. at Id. 150. 151. A less formal study at 93 Id. n.102. findings. by Jaime Dodge made similar For cases of Dodge 2014, pending April as 2004, that between found 2000 and were appointed to men side plaintiffs times more positions leadership 11.8 supra often than women. Dodge, note 109, at 364. men 2009, were appointed and 2005 Between 6.73 between times more often, and 3.02 times more often. 2010 and 2014, When looking specifically Id. at "Tier leadership 1" plaintiff's the roles on that between 2005 Dodge side, found were appointed 7 men and 2009,
22 637 FEMPIRE? A LEGAL 2018] more are slightly lawyers MDL defense-side that shown has study one least At in its lawyers appoints transferee judge, not the defendant, cases the most In diverse. 2 5 de- represented women more that slightly found study One litigation.1 multidistrict men were that study found 2014, the and 2010 Between context. this in fendants 3 during the In contrast, than women.' times more 2.88 counsel defense as appointed than more times 3.02 attorneys plaintiffs' as appointed were men period, same time women. '14 It is difficult know to there is why this slight difference, of course, and a is there that suggest findings the Nonetheless, study.' the to limitations are there the in differences structural and how whether of the question begs which variance, difference. to that contribute lawyers defense and for plaintiff processes appointment done been work has any if empirical little of color, to women respect with Finally, within positions to leadership color appointed of women of number the assess to than even lower are those numbers that sense is least, the at Anecdotally MDL cases. 5 6 un- color are of women judges, JPML Like whole.' a as women of number the lawyers. MDL as derrepresented attor- the to judges the litigation-from multidistrict of elite practice the sum, In include to failing is it but women, white more include to changing slowly neys-is litiga- complex in experiences women's from lessons be There may of color. women be done. work to more certainly is but there tion, FORWARD EQUALITY GENDER MOVING Ill. all women of inclusion the why for the case make will Article the Section, this In case, that made Having important. broadly-is more law litigation-and complex in litiga- in complex experience women's from learned have we on what it will focus women all that ensure how to for proposals of a variety make will it tion. Finally, law. in succeed to chance a have Equity Gender Case for The A. argument the with the case is Such so. always not is obvious seem might What that argues Article the this Section, In essential. is institutions within diversity that that numbers levels-in all law-at of practice the in participating be should women of the sake for made not is argument This population. the general of reflective are and participate women that ensuring in value is there because but appeal, aesthetic heteroge- First, statistics. in the reflected currently are than numbers higher at lead when and related, Second making. decision group in inherent the risks mitigates neity times. more 5.47 appointed were men 2014, and 2010 between and women as as often times Id. at 364. 109, supra note Dodge, 152. at 365. Id. 153. 154. Id. these influence many factors as the cause, pinpoint cannot data the ("But, 155. Id. appointment rates."). are few there that a sense expressed long have attorneys ("Anecdotally, at 363-64 Id. 156. the on particularly leadership, to MDL appointed non-Caucasians fewer and even women side."). plaintiff's
23 INDIANA JOURNAL LAW 93:617 [Vol. 638 are women process, decision-making part a of often-it the different, are results ap- pears-in that way a diversity is beneficial. Third, lends civil justice system the greater credibility and finally, And legitimacy. respect most to elite echelons the with legal the of market, to greater heterogeneity there is a duty to commit a because of consistent of and blatant history exclusion. First, group of making decision kinds-including all and lawyerly deci- judicial making-is sion optimal most when the group heterogeneous. is Group decision 1 57 has making studied at length been numerous by social scientists. beyond It is the of capacity and scope this Article to restate that in work one is there Yet, detail. both is be significant can made important generalization that literature that from this group decisions are and when made by a group supportive of greater diversity: better 1 5 8 that includes of Stated a variety viewpoints. risks meaningful are there differently, homogenous in group decision Risks like making. cascade effect"' and confirmation ready bias'" are Those examples. most risks can be profitably mitigated creating by heterogeneoustgroup. more a scholars Some argue instead that identity, using of "cognitive diversity" should Cognitive employed."' be appeal because instead diversity has "vis- on of focusing differences ible such as race, gender, ethnicity, age, physical disabilities, and demo- graphic dissimilarities," focuses on identity cognitive diversity as well as "diverse 62 knowledge and expertise experiences, training, stemming from expertise."' [and] 157. See L. JANIs, IRVING GROUPTHINK: PSYCHOLOGICAL STUDIES DECISIONS OF POLICY FIASCOES AND 1982) ed. (2d (coining the "Groupthink" term inspiring and area an of study around decision and group dynamics making); Hebl B. Eden Michelle R. King, J. Daniel & Beal, Conflict and Cooperation J. in Diverse Workgroups, 65 Soc. ISSUES 261 (2009) (summarizing science social research on group dynamics in workplace). the 158. least one study has At that "identification shown and social the attraction," things that group make homogenous, a diminish group of the value making. decision A. Michael See Hogg Sarah Friendship C. and & Hains, Group Identification: A New Look at of Role the in Cohesiveness 28 EuR. J. Soc. Groupthink, 337 323, PSYCHOL. (1998). 159. Cascade effect is when few a members of a group signal that a decision is correct, the other leading members of the group to fall in line CASS dissent without WHY SUNSTEIN, R. SocrETiEs NEED effect DISSENT 10-11 (2003). Cascade "following" when the even can occur of members the group have reservations Individuals id. about the decision. See be might their worried about are wrong and they if reputation dissent and are no longer or if they dissent See seen as team players. id. 160. when occurs group Confirmation bias run counter members discount views that to the spite of the view-in group's that different view-or value relative of members when group information interpret a most beneficial in way is that views-again, group's the to overall in spite of diverging interpretations that information. of See Elizabeth Cognitive Thornburg, Bias, of the "Band Experts, Narrative, Anti-Litigation the and " 755, 785-86 65 DEPAUL L. REv. (2016). "Confirmation us bias leads interpret find and to a way information in that supports preexisting hypotheses and to avoid information or interpretations alternative support that possibilities." at Id. 785. Thornburg also discusses availability bias, an individual bias, which means that "when are examples to retrieve from easy memory, people estimate that the will the event frequent." Id. or large category is 161. See Burch, at 111, supra note "cognitive" (arguing for 120 as opposed to "identity" diversity). Elizabeth 162. Chamblee Burch, Monopolies in Multidistrict Litigation, 70 VAND. L. REv. 67, 140 (2017).
24 639 FEMPIRE? LEGAL A 2018] individuals not "reward" should society that notion the to appeals diversity Cognitive they were with which their identity-something because of simply with opportunity ed- through experience, are earned that on qualifications focus instead It must born. like an argument of allure the short, In grit. term, of better a lack and for ucation, eliminates-identity. some instances, in minimizes-and that is it diversity cognitive or replace not should it diversity, to cognitive worth certainly is there While underesti- diversity cognitive First, value. an equality as diversity identity eclipse devel- cognitive one's on has identity impact the obscures, least very the in or mates, provides diversity of cognitive favor in arguing one scholar example, For opment. class upper in an raised woman American Mexican "[A] hypothetical: following the train- and tools similar analytical have School may Law Harvard who attends family 6 3 that two individ- seems plausible It school."i the same attending white males as ing might training school law same elite the and status socioeconomic similar uals with commonali- those However, common. in tools analytical and cognitive some have experiential profound and distinct the displace exist-cannot they ties-assuming identity. their of because have man white a non-Latino Latina and a differences matters; identity they believe that respond would proponents diversity Cognitive of study is an area diversity forms of internal and of surface intersection the indeed, propo- diversity they-cognitive What engaged.'" are scientists which social in doing not of risk The diversity. assessing to approach nuanced a is more nents-want deci- and interactions of complexity and context the First, twofold. is argue, they so, is there second, And identity."'s is of study only point the lost when are making sion dictates alone identity that assume might one identity, only observing by that risk a 6 6 risks. valid beliefs."' These "cognitive styles, values, are certainly or as diversity cognitive about with talking problem The risk. a greater there is Yet, fact that the for cover it provides that is diversity identity for proxy or replacement a 67 context within the shows Article as this fact, In not yet exist.1 does diversity identity While equality. identity obtaining to close even not are we litigation, of complex a take it must discussion, important this in a place have might diversity cognitive is power until words, other now. In for least diversity-at identity to seat back the society, in our identities various the reflects that way a in distributed equally wait. must cognition our in diversity of impact the parsing of luxury 163. Id. attributes different how ("Understanding 279 at 157, note et supra al., King See 164. of the area in researchers facing task critical be a will space in multidimensional function diversity."). workgroup a Difference?: Make Differences What A. Neale, Margaret & Mannix Elizabeth 165. See no. INT., SC. PUB. 6 PSYCHOL. Organizations, in Teams Diverse of Reality and Promise The 43-44. at 31, 2, 2005, 44. Id. at 166. A. Williams, Bdri See industry. the tech within echoed has been critique same This 167. 16, Is in Your Head, N.Y. TIMEs (Oct. Diversity 2017), Trend: New Tech's Troubling https://www.nytimes.com/2017/10/16/opinion/diversity-tech-women-silicon-valley.html provide it could diversity, cognitive to shifts focus our ("If [https://perma.cc/BLE2-CUTS]. of numbers low embarrassingly the of increasing work hard the doing around easy way an ranks the blacks and Latinos in leadership roles, employees, in of suppliers and vendors, as boards."). and on
25 INDIANA JOURNAL LAW 93:617 640 [Vol. cognitive and relatedly, Second, diversity-is identity diversity-unlike difficult studies attempting to measure the impact of cog- to measure. As there are discussed, diversity nitive making, on but group decision between internal distinctions at getting 168 individuals contrast, be to In challenging. proves identity is relatively easier to measure can and be both observed within and without scientific study. Thus, is not while identity only the way to achieve heterogeneity, a it certainly is decent place have identified to start. Scholars in context the these issues already of multidistrict litigation. Conformity and the of lack dissent repeat among the players often who plaintiffs' the lead MDL case suboptimal to can lead for results cli- their 1 6 9 ents. members When group encouraged are and allowed express differing to view- points, better decisions The made."o are lack diversity, that of the often as is case in MDL committees, leadership that means many there are lawyers lead risks: might use their position elevated to bargain for at increased fees of expense the the overall 7 settlement fears value;"' reputation about and opportunities future prevent some leading lawyers from objecting on basis the misgivings of about a case or proposed 72 settlement,1 transferee and judges often are too familiar with repeat-player attor- neys, which obscures their ability to see that representation the may not be ade- 7 quate. 1 What is apparent from scholars' assessment of multidistrict is litigation that more voices the room-with in perspectives differing and incentives-would be of benefit. great a Women necessary are solution. that of part second A related and of benefit participation greater by is women results-oriented. women When involved are in decision making, the results change. judicial In deci- sion making, studies repeatedly have shown the that judge's gender the affects deci- 74 that sions makes.1 she he or One study found sex that in discrimination suits, female et 168. King See 157, supra al., note at 279. See 169. supra Burch, note 119-20. at 111, 170. See at Id. 80, 92-93, 95. 171. 80. Id. at 172. Id. 85-86 at objecting ("An attorney faces the her that risk will peers her non- dub cooperative 'ineligible' and thus for leadership future roles."). 86. Id 173. at Jennifer See 174. L. Note, Peresie, Female Judges Matter: Gender Collegial and Decisionmaking in Federal the Courts, Appellate 114 YALE L.J. 1759, 1776 (2005) (finding in sexual harassment cases that a female having judge increased probability the a of for vote the plaintiff by 86% (from to 22% 41%)). But Gottschall, see Jon Carter's Judicial Appointments: Influence The ofAffirmative Action and Merit Selection on the Voting on U.S. Courts ofAppeals, JUDICATURE 67 168-72 165, (1983) no (finding statistically significant difference in voting patterns between and female male federal appellate court in judges sex discrimination cases between July 1979, 1, and June 30, 1981); Gerard Gryski, Eleanor S. C. & Main J. William Models Dixon, ofState High Decision Court Making Discrimination in Sex Cases, POL. 48 J. 143, 148-50 (finding (1986) same the between state supreme court judges in sex discrimination claims between 1971 1981); to Thomas G. Walker & Deborah J. Barrow, The Diversification ofthe Federal Bench: and Policy Process Ramifications, 47 J. POL. 596, (1985) 607-09 the (finding in selected same male Carter and female appointees to federal the district bench court examining the voting patterns twelve of matched pairs of female and male when on deciding policy "women's issues"). Most experts believe that studies, these while correct, were based on small too sample a female of judges bear rigorous to statistical results. Rosalind Dixon, Female Justices, Feminism, and the Politics ofJudicial Appointment: A Re-
26 641 FEMPIRE? LEGAL A 2018] 5 17 Another judges. than male of the plaintiff in favor find to likely were more judges appellate female federal that and determined studies fourteen reviewed scholar in gender male counterparts distinct their from patterns judges had decision-making 7 6 optimal is a differences are of whether those question The cases.1 discrimination discrim- whether gender some on agree to It difficult rather is of matter perspective. not. rightly decided ination cases are or legal context is the in making decision the Setting aside the question of whether showing that is data there in greater numbers, women participate when optimized For example, better results. contexts begets other in women by higher participation International Institute for study Peterson by the recent context, a in the corporate in female 30% increase a profitable, are that that firms for Economics determined rev- in the net a 15% increase associated with was the organization leadership within the those that with companies found 500 of Fortune Another study enue margin."' a return on invested capital board directors enjoyed of of female percentage highest 7 8 Corporate suc- participation.' than companies female with lower nearly 66% higher positively decision makers as women and more profits, by corporate cess is measured success of measure the on argue also that-depending metric. One could impacts that well. as there improve the results might women context-more legal in the legitimacy in law is that it inures more participating of third benefit women The Procedural work pathbreaking argued in his Solum Larry As justice system. our to 7 9 No adjudicatory system.' legitimize to an enough not are outcomes alone Justice, an im- that Solum argued are inevitable. inaccurate outcomes so is perfect, system "that framework procedural a in it is grounded if legitimate be can still system perfect reason- a strikes process a in that to participate meaningful opportunity us affords a inevitable costs outcomes and the of accurate the between goal able balance of on race of impact the Studies (2010). 311-13 297, J.L. YALE FEMINIsM & 21 Examination, & Pat Chew K. e.g., See, that matters. race shown similarly have making decision judicial Harassment ofRacial Judge: An EmpiricalAnalysis ofthe Color-Blind Myth Kelley, E. Robert their cases of 46% successful in ("Plaintiffs are (2009) 1156 1117, REv. WASH. L. U. 86 Cases, judges; White logistic half as often before but less than American judges before African are judges American African plaintiffs before average, on indicated that analysis regression judges."). win than before White to times more likely 3.3 Effects Causal the D. Martin, Untangling Epstein & Lee Andrew L. Boyd, Christina 175. a female of likelihood the that (finding 389,401 (2010) Sci. POL. J. AM. 54 Judging, ofSex on was a woman). judge 10% when the about increased by case in her plaintiff succeeding Emerging Cases: Employment Discrimination Gender and Judges' Chew, Pat K. 176. 366 (2011). & JUST. 359, GENDER, RACE 14 J. Conclusions, Empirical Evidence-Based Profitable? Diversity Gender Is Kotschwar, Barbara & Tyler Moran Noland, Marcus 177. No. Paper 16-3, Working Econ, Inst. for Int'l (Peterson Global 16 Survey from a Evidence [https://perma.cc/JE5Z-25D6]. https://piie.com/publications/wp/wpl6-3.pdf 2016), Bottom The Narayanan, Wagner & Sriram Carter, Harvey M. Nancy Joy, M. Lois 178. Line: Corporate Performance & Women's Representation on Boards, CATALYST (2007), CorporatePerformanceandWom Bottom Line http://www.catalyst.org/system/files/The [https://perma.cc/3WQ5-JRP2]. RepresentationonBoards.pdf ens (2004). 190 181, REv. 78 S. CAL. L. Justice, Procedural B. Solum, Lawrence 179.
27 642 INDIANA JOURNAL LAW 93:617 [Vol. any dispute resolution."iso Solum's work articulated a set of imposed system by of paramount prin- justice."' The for procedural create the foundation that principles 8 2 to Solum-is participation.1 ciple-according in is that full participation the idea this theory participation on of Expanding that the deci- participants Thus, requires case one's believe they have been heard. the attorneys sion are making arguments are a makers who are listening and who value. individual litigant who sees herself An participation this of part critical in a much stronger sense the decision maker participa- or in the attorney will have of tion, Again, and thus legitimacy. identity matters. only thing the not is that the Yet, participation credible when more is effect the decision makers and lawyers reflect the population using the court system, greater systemic leading to legitimacy. Finally, the profession is generally legal is often esteem high in held and at the of social change and justice; yet forefront is a profession that reg- of the pursuit it people viewed "other.""' This history of exclu- ularly excluded (and excludes) as sion profession-most in the would legal agree-is not something about we which compel us to take be proud. to remediate as lawyers should Instead, it should action In other the this history should not be inevitable results of that exclusion. words, be discussed and to counteract the consistent utilized instead should but hidden and men had (and continue to have)." lengthy sum, there are advantage that white In social benefits heterogeneity, but in addition to certainly economic, systemic, and of of profession to commit to correcting its history a duty legal those benefits, has the individuals based on identity alone. excluding so many qualified 180. Id. at 181. Id. 305-07. 321. at Id. 182. 183. See J.H. Andrade & Troy Equality Ke Kandwai Mamalahoe, Splintered in Our HAw. L. REv. 249, 257 (2010) ("The legal profession's history can be Profession, U. 33 characterized as of one discrete sometimes and outright exclusion."); Helia Garrido Hull, Diversity the in Legal Profession: Moving from Rhetoric to Reality, 4 COLuM. J. RACE & L. 1, of significant, positive 2-3 advancement over (2013) ("Despite being the architects societal the century, members of the legal community twentieth to struggle of half last the continue their own with R. Johnson, Bias in the Legal the inequality that exists within ranks."); Kevin on Eligibility of Undocumented Immigrants to Practice Law, 46 U.C. System? An Essay the 1658-59 of (summarizing history of exclusion 1655, immigrants and DAVIs L. REv. (2013) "others" from the of practice law); Mary Men Vasaly, Black: in Gender Diversity and the 36 WM. MITCHELL L. REv. 1703, 1703 (2010) ("For most of the history Eighth Circuit Bench, of the legal in the courts United States, profession of the were 'men exclusive domain in black."'); Wilkins, B. David "Separate From is Inherently Unequal" to "Diversity is Good for Business": The Rise of Market-Based the and Arguments Diversity of the Fate Black HARV. REv. 1548, 1560-71 (2004) (summarizing how the legal L. Corporate Bar, 117 profession historically excluded and women). men non-white B. Wilkins, A Systematic Response to 184. Disadvantage: A Response See David Systemic 57 L. REv. 1915, 1922 (2005) (arguing that "[law schools and legal to Sander, STAN. were employers in taking steps justified affirmative to and assist black students lawyers in order to counteract systematic the and pervasive preferences that had been accorded to white, Anglo-Saxon, means Protestant men of one hundred than for more years").
28 643 FEMPIRE? A LEGAL 2018] Equity the Path to Gender Some Steps B. on in their own important were 90s 1980s and the of forces task bias gender The in court the were women treated issues with how ongoing identified work right. The some made the task forces as parties. Relatedly, and professionals system, both as there for women.'s Yet, situation the how to for improve concrete recommendations traits into how intersectional not inquire generally forces task did were frailties. The 18 6 like race impacted the experience of women. And, of some recommendations, the to eq- gender achieve for inadequate be to proven have the time, while progressive uity. bias task force move- The gender thing one is for sure: their net worth, Whatever for our courts, and for for our country, challenge ongoing light on an new shed ment elite in stand the on where women this Article reflects spirit is that that in women. It progress Article has detailed, there again the litigation. As complex of modem world done. be is and there to much more work but it been has made, been slow, has more proposals for how to bring of a Part, the Article will make variety In this proposals these of Some law. of the practice within of power into positions women how social norms around example, changing applicability. For general be of will legal of across kinds all women benefit would the workplace in are viewed women com- to impact limited not is Its lives. their of all aspects across indeed and practice from the ex- what has been learned harness some of proposals Other litigation. plex increase to need is proposal the litigation. such One in complex of perience women of proposal has a spe- networks. This kind professional mentoring for women within because the intent is to bring more in for women complex litigation cific application positive ramifications firms. Yet, it has elite law at equity into partnership women well. complex litigation as practice who of outside for women definitive. not to be certainly and it is be comprehensive not here to is The goal continues, with around women and the law the conversation is hope Instead, the that im- to how and with an eye toward come before have that thanks to movements the the following discuss Article will the in mind, caveat With that prove going forward. retain (2) social gender norms; and base sexism change and (1) confront proposals: and networking, mentoring, to changes structural firms through major women law at practice; homogeneity in legal to restructure systems that lead (3) assessment; and lit- in multidistrict plaintiffs' attorneys for selecting the "slate" system for example, igation. Sexism Social Norms 1. & Base The norms. social base sexism and change confront a as society, we must First, to sexual paid attention being recently, the more even and election, presidential 2016 room board the and in Hollywood, politics, women by claims assault and harassment When culture.' our underlying and misogyny sexism foundational the demonstrate Parts L.B, I.C. 185. See supra Id. 186. ofSexual Accused Been Figures Who'e the Public Are All Here Cooney, See 187. Samantha http://time.com/5015204/harvey- (Jan. 26, 2018), Weinstein, TIME Harvey After Misconduct Sexism Now Can We Adnit Michelle Ruis, [https://perma.cc/372Y-WQKU]; weinstein-scandal
29 644 INDIANA LAW JOURNAL 93:617 [Vol. lawyer" turned example, the query of "first woman for for doing this research Article, the "10 Most finds. was a website boasting High the list few a up interesting on of amazing There, Lawyers.""' Women Attractive the achievements female lawyers like Shaheed reduced to descrip- and were Fatima Amal Clooney (n6e Alamuddin) their "breathtaking tions of "delightful 18 beautiful eyes," simi- and dimple[s],"" of latent sexism and objectification larly offensive top-ten lists. Overcoming this kind a struggle. be of women continues to is a constant appearance Indeed, so especially challenge for women, for but African American women often struggle to make their women of color. For example, of of beauty."' The "texture and length appearance and a mold an fit hair expected woman's hair black 'becomes a proxy for legitimacy.""'" Similarly, Muslim women compounds discrimination on the experience wearing hijab any that discrimination 9 3 detrimental women and their appearance is on to The basis focus of their gender.' success in the workplace. their move- an one. Awareness, education, easy not is challenge The answer to this by allies can only help. Failing to acknowledge that this most ments, and overt action culture basic be overcome-as hard and intractable a problem challenge in our must be mistake. be-would as it might a Women in Complex Litigation Practice 2. Retaining & Elevating draws Second, complex litigation attorneys from most elite the Those firms. law law might be hiring men firms close to equal rates, women and at women but white color of achieving are women and not of partnership.'" rates commensurate The and question is to both assess how between gap the ameliorate hiring and partnership at elite law firms." Was a Factor in the 2016 Election?, VoGuE (May 16, 2017, 2:44 PM), https://www.vogue.com/article/donald-trump-classified-infonnation-russians-sexism-2016- election [https://penna.cc/TW9D-PJQ8]. 188. Ejaz Khan, 10 Most Attractive Women Lawyers, WONDERSLIsT, http://www.wonderslist.com/10-attractive-women-lawyers/ [https://perma.cc/N6GG-5AQA]. DOUGHTY See http://www.doughtystreet.co.uk/ 189. Amal Clooney, STREET CHAMBERS, barristers/profile/amal-clooney [https://perma.cc/GH6W-96WS]. ShaheedFatima https//www.blackstonechambers.com/ 190. CHAmiBERs, QC, See BLACKSTONE baristers/shaheed-fatima-qd [https//permacc/6LCE-N26L]. supra 28, at 1783. Pratt, 191. note 192. Id. (quoting Paulette Piece: M. Caldwell, A Hair Perspectives of Intersection the on Race Gender, 1991 and 383 (1991)). DuKE L.J. 365, Sahar See, Aziz, 193. e.g., F. to the From the Oppressed Terrorist: Women Muslim-American Crosshairs ofIntersectionality, in the HASTINGS RACE 9 POVERTY & L.J. 191, (2012) ("After 224 this 9/11, as woman article argues, the headscarved additional stereotype-a faces an disloyal and anti-American or terrorist-sympathizer."); terrorist Muslim Against Discrimination - Women Fact Sheet, Am. C.L. UNION (Nov. 2008), https://www.aclu.org/other/discrimination-against-muslim- women-fact-sheet [https://permacc/38DS-79YK]. See 194. supra and Introduction Part II.C. A related, 195. and perhaps, precedent issue what Deborah is Merritt & Jones Kyle call McEntee for the entering "leaky pipeline" women Deborah the legal profession. Jones McEntee, Kyle November Merritt & 2016 Pipelinefor Research Summary: TheLeaky Women
30 645 A FEMPIRE? LEGAL 2018] their taken public steps to demonstrate not elite firms have if most, law Many, 1 6 has paid dividends as the number of women to diversity.' commitment This work 97 however. is tempered, success That increased.1 "BigLaw" has firms entering 98 "positions Moreover, male.' white and still disproportionately rates are Partnership overrepresen- stratified with an firms] are still law [within predominantly power of Saeed-a Faiza like While exceptions positions."'" white in of men senior tation show that & Moore-can be found, statistics at Swaine Cravath, group head practice 2 00 top of 25% that A recent study found positions. law top in are rarely firm women 20 1 not their management committees. have any The study do law firms women on female one have even not did such law firms eight every out one that found of also 2 0 2 similarly discouraging. color, picture is For women the of group leader. practice and men women of African number the that American a found recent study While more than a third of that slightly increased, it also found on management committees practice of as the heads women of color serving any men or do have law top not firms 3 0 2 groups. RADIo, http://www.lstradio.com/women/documents/ Legal Entering LST the Profession, [https://perma.cc/8JQS-EG44]. Nov-2016.pdf MerrittAndMcEnteeResearchSummary applying for law even before at a disadvantage were women that found Merritt and McEntee women of 2.6% only while to law school, apply graduates male college of First, 3.4% school. male of 79.5% admitted: be are less likely to women once Second, 1. at they apply, Id. do. of female applicants. 75.8% Id. 2015, in to the fall of compared accepted applicants were at a that put them tend to attend law schools law school to who admitted are Finally, women 70-84% of their who placed at 2. For schools Id. market. employment the disadvantage in of those schools' enrollment. up 45.7% just positions, made women in JD-required graduates the women jobs, of same students in their in than 40% less placed schools that Id. at Yet, 2. entering law are not 2. This data suggests that women Id. at enrollment. that of 55.9% were for More Elizabeth Degrees See also Law Olson, on footing. equal work the or force school https:// 2016), 30, (Nov. DEALBOOK, TIMES: Jobs, Good N.Y. but Fewer Women, www.nytimes.com/2016/11/30/business/dealbook/more-law-degrees-for-women-but-fewer- good-jobs.html [https://perma.cc/3REH-UXBW]. Blindness Diference Ballakirshnen, S. & Swethaa Wald Pearce, G. Russell Eli See 196. Diverse to Failed Create ofIntentions Have Best Law Firms with the Awareness: Why vs. Bias and Recruitment Diversity see also (2015); 2409 REv. 2407, L. 83 FoRDHAM Partnerships, https://www.perkinscoie.com/en/about-us/firm/diversity/diversity- COIB, PERKINS Retention, Inclusion, to Diversity and Our Commitment [https://perma.cc/P9AZ-E992]; recruitment.html [https://perma.cc/HK8V-CVDY]. http://www.klgates.com/aboutus/diversity GATEs, K&L al., supra note 196, at 2409. 197. Pearce et constituting 25, at 2246 ("Regularly Wald, supra note also see Introduction; supra 198. See the glass run into have lawyers firms, women at large law of associates the entry class half ranks."). in partnership achieve equal failing representation to effect, ceiling 196, at 2409. note et al., supra Pearce 199. and Women Including in Lag Firms York Law New Leading Olson, Elizabeth See 200. https://www.nytimes.com/2016/10/ 2016), 16, (Oct. DEALBOOK TIMES: N.Y. Minorities, 17/business/dealbook/leading-new-york-law-firns-lag-women-and-minorities-diversity.html [https://perma.cc/5ZNF-VY62]. 201. Id. 202. Id. 203. Id.
31 INDIANA JOURNAL LAW 93:617 [Vol. 646 women are enter- while that of the women at the top is for lack major reason One higher at ing practice firms rates, law retaining are not long enough those women to recent study found that during 2015, to such positions. into ascend A them allow com- left major law firms, women of color of men and 20.8% women of and 18.4% 2 white while that mean rates retention These men. 0 of white only 13% to pared unable to succeed they are higher rates, at be hired might of color women women and positions gaining partnership are not Thus, women environment. the firm within once is diverse candidates of positions, pool its leadership fill to the firm looks when and significantly lower. are of color leaving for theories why white and many are There women women 205 door-the the in that-once theory is compelling law One at higher rates. firms blindness" its that such "difference and associates a to difference among blind is firm women and white where environment an creating is counterproductive approach to 2 approach is because the difference blindness This is 06 of women color can succeed. the best will the same standards, to held everyone is that if based on the false premise 20 7 stand- merit-based flawed because the premise is This top the to rise succeed. and heterosexual, ideal worker who is white, an historical to are ards conformity "built on 208 within a merit- believe operating are that they firms might and So, male." while is that they are not. based system, the reality to persist and and implicit biases allows maleness normalization of whiteness The dominant group, white men are the succeeding. If from people "different" prevents work- within the who curries favor impact on an unequal their biases will have 209 human and people will continue to be most Relatedly, nature place. will prevail 2 1 0 are called homophily. who phenomenon like people with comfortable them-a 204. Id policies, and balance, parental-leave around work-life concerns 205. For example, there are expected to function based on stereotypically are considerations regarding how women related male-oriented standards of behavior both within and without office. the John E. Higgins, 76 Businesses, and in Schools Trends Pro-Diversity Underscore Decisions Grutter and Gratz firms should offer other things, that, among law J. 32, 36 (2004) (suggesting N.Y. ST. B.A. Jackson, Invisible Then Gone Liane and flexible policies work options"); "family-friendly 102 ABA J. 36, 42 (2016) Here's Why, from Biglaw-and Minority Women Disappearing Are (discussing be "acknowledged and valued" how differences between men and women must men who and individual contributions" that delivery on how "the entrenched paradigm and make succeed change). There are also pipeline issues. Michelle P. Crockett, in law firms must MIcH. B.J., 42, 44 Law for Women of Color, 92 the Realities ofPracticing an Alone on Island I acknowledge retention issues more broadly, focuses on Article generally While the (2013). do others, contribute complexity of why more women the not and to that these concerns, law firms. become partners at major supra 206. 196, at 2411. See note Pearce et al., 2412. at 207. Id. authors argue that this norm creates two related and problematic 208. Id. The dynamics. leads institutions to believe that they have agency in creating a truly First, it individuals and from And, and the institution prevents individuals considering Id second, it equal workplace. "normalization of whiteness" and "blindness to evidence actually makes that the difference" equality Id achieving real impossible. 2412-13. at Id. 209. Id. at 2413. 210.
32 647 FEMPIRE? LEGAL A 2018] from gain that individuals the benefits stick, the are measuring blind merits the When not considered like them are and who look who are leaders by those being mentored 11 2 when men have that white advantages the inherent differently, Stated weighed. and their comparing for when accounted not are simply workplace legal the into coming counterparts. differently-situated with their work fig- but challenge, a is certainly rates retention low of such the cause Identifying in Work more daunting. rates is even low retention the how to ameliorate uring out that a workplace to structure how best determining is in useful theory organizational 212 is work such of account brief One succeed. to people of all kinds for allow will a adopt should institutions blindness," shed "difference Having here. instructive 213 structural to door the opens approach that Adopting approach. awareness" "bias bias openly discuss a firm can once example, For work. actually might that changes indi- educate to create programs can it to succeed, ability one's how impacts it and 214 educa- This functions. bias roles-on how leadership in those viduals--especially that one training diversity required often-ineffective cannot be the however, tion, an forces that training of the kind be must but instead home, at computer on her does bias and discussing openly by equality in creating engage collectively to institution 15 2 works. it how about learning to concrete then commit must the institution is complete, piece education Once the are success- who diverse associates who mentor partners as rewarding such changes 2 1 6 would mean women of women and that color white mentoring Conscious ful. of auto- gain white men that advantage the implicit from benefit would those women white is still leadership of firm much so Because firm. a they enter when matically white to teaching be targeted must any that training this means however, male, and 1 2 7 them. like look not do who with individuals connect and mentor to how men valu- gain would color of women and women white mentoring, of that kind With to exposed a firm-be within ascension for important and-most experience able the First, reasons. for two is critical This development. in client engage and clients long enough of color women and women retain white to able better be would firm to position a once in Second, positions. for leadership competitive to them be for like equity positions the highest-level for to compete better able will be women lead, partner. Id 211. 212. See, e.g., TAYLOR COX, JR., CULTuRAL DIVERSITY IN ORGANIZATIONS: THEORY, its and diversity cultural understand how to (discussing (1994) PRACTICE AND RESEARCH effects on organizational behavior); JAY STEVEN M. SHAFRITZ, J. Orr & YONG SUK JANG, organization in works or (collection 2016) ed. (8th THEORY ORGANIZATION OF CLASSICS 4 Organizations, Gendered of Theory Bodies: A Jobs, Hierarchies, Acker, Joan theory); but neutral, is not gender structure that organizational (arguing (1990) 139 & SOC'Y GENDER difference). about gender on a assumptions built is instead 2411. at note 196, supra al., Pearce et 213. 2444-48. See at id. 214. 215. See id. 216. 2442. Id. at See id. at 2451-53. 217.
33 INDIANA JOURNAL LAW 648 93:617 [Vol. partnership, men still make that women obtain equity Statistics even show when 2 1 8 This to origination is more. 44% due largely who the that idea credit--the person in get than the person who simply money more should the originally brought business that male partners reported an average origination the client. One survey serves found 219 partners reported only $1.7 million. payment of $2.6 million while female part, difference fact that women are not exposed to clients This is due, in to the clients environ- a difference-blindness firm cultivate and given the opportunity to in sheets; origina- study at billing records, time One careers. their early in ment looked records across a number of law firms to determine why there tion files, and personnel 220 male and partners. between The study determined is an "origination gap" female grow tend often through the (obviously "women that their book incrementally to and 22 who brand new to the firm." contrast, 1 In clients harder) process of developing are "men tend to 'inherit' institutional either clients - sole the as co-lead or partner on 222 origination" system traces accounts." to the associate This major "biased back 23 2 on identity. based largely differently mentoring develops when years are If to a have women litigation-both in place bigger complex lawyers and as women judges-the number of law firms who succeed at elite ac- To must increase. make significant structural changes. Finns complish that fig- goal, firms must have 224 diversify ured out to how ranks; entry-level their associate turn they now must attention retaining their to and elevating those individuals. same 3. Multidistrict Litigation Practices Restructuring there are additional structural barriers to women suc- Within each type of practice Multidistrict ceeding. litigation's of primary source inequity plaintiffs' lead- the in is 5 22 committees. ership Yet, are making both lawyers and judges changes and becom- of to be a recent, concerted effort ing more aware this inequality. There also appears MDL the to change the composition of JPML transferee judges. of current on the part the Article will use the leadership committee process In how this final proposal, and have as an example of how structural responded within lawyers judges and changes specific practice can areas of legal begin institutionalized to remedy inequality. It will discuss how the changing also face may transferee MDL further of judges assist in this pursuit. 218. Elizabeth Olson, 44% Pay A Divide for Swvey Partners, and Female Male Law Says, N.Y. 2016), DEALBOOK TIMEs: (Oct. 12, https://www.nytimes.com/2016/10/13/business/dealbook/female- law-partners-eam-44-less-than-the-men-survey-shows.html [https://permacef4XN-27TW]. Id 219. Heidi Gardner, 220. Origination Study: On Harvard and Gender Profession in the Legal (Perspective), BLOOMBERG LAW: BIG LAW 2016), (Nov. BusINEss 3, https://bol.bna.com/harvard-study-on-gender-and-origination-in-the-legal-profession [https:// perma.cc/8CNN-KABW]. Id 221. Id. 222. 223. See id. Firms systems compensation lock-step using success at may have more both retaining and elevating within women their partnership ranks. See 224. 196. note supra Part I.C. See 225. supra
34 A FEMPIRE? LEGAL 649 2018] of proposed and received a "slate" judges solicited transferee MDL Traditionally, 26 2 en- While slates have the benefit of on leadership committees. serve to attorneys 227 group, they have a downside. and a experience, working collegial suring expertise, confir- a group presents risks such as such earlier, the homogeneity of As discussed 22 8 new excludes entrants into process necessarily slate the Moreover, mation bias. to presented the slates dominate tend to players repeat process because the MDL 229 the men, repeat players are white so the those know of We composition judges. gender and race disparity. a necessarily institutionalizes slate process individualized-appointment process some judges have adopted "an response, In many qualified attorneys between the selecting in factors the allows decisive [that] that and other factors experience, of of diversity clients, diversity skill, become to 230 new generally trend is This the in MDL." the results more directly improve would attorneys. For example, litigation experienced complex by well-received being "Clean in the Volkswagen the solo lead counsel recently most Cabraser, Elizabeth di- "promotes process individual-appointments that explained the Diesel" litigation, barriers the it simply eliminates merit, because discounting without naturally, versity 231 the the way Changing impose." subconsciously system can slate a that to entry com- to plaintiffs' leadership changes in resulted works has already selection process can structures to certain that changes argument to credibility the mittees, lending actually decrease barriers for women. begun to increase have women in that multidistrict litigation way An additional it. Most notably, Jayne in demand leadership is to positions participation their Judge James Selna argued that Hanly Conroy, attorney at an Simmons Conroy, acceler- Toyota the plaintiffs in the of composition demographic the consider should 2 3 2 so many buyers were women). Because (as litigation the Toyota over half ator leadership judge should ensure that the the Conroy women, were argued, plaintiffs 233 blatant a This was it was representing. plaintiffs the of reflective was committee com- the on depended to some degree, process, the of legitimacy the that declaration should that not judge the argument The was committee. leadership of the position among of pool large a the that but aesthetics, sake of women for solely appoint should be made to effort and women-an men candidates-both equally qualified diver- that to value there real a was plaintiffs because the of composition reflect the 23 4 as something this and many saw role, to a leadership appointed was Conroy sity. of leadership composition for engaging the point in judges demographic of a tipping 35 2 in- for work arguments might the yet whether similar not is It clear committees. women color. of of clusion supra 226. 109, at 364-66. See Dodge, note id. at 365-66. 227. See supra III.A. See 228. Part supra note 109, at 366. 229. Dodge, 230. Id. 231. 137. Steinberg, note supra note supra at 366. Dodge, 232. 109, 233. Id. 234. Id. singled out the Toyota attomeys supra note 137 ("Several also see Steinberg, Id; 235. awareness."). diversity gender tipping point toward a as litigation acceleration sudden
35 650 JOURNAL LAW INDIANA 93:617 [Vol. ensuring that attorneys be more representa- have judges been explicit about Some regularly Baer Jr. (deceased) Judge Harold in aggregate litigation. of clients their tive cases in his court be in action class lawyers required that quite controversially and 2 36 Act Security Income Retirement an Employee a class in certifying I "diverse." Judge provided the following: Baer case, discrimination age and (ERISA) of Plan participants, both male The proposed class includes thousands and There- ethnic backgrounds. arguably diverse racial from and female, is all concerned I fore, believe to important it of is there that evidence and gender, of any class counsel I appoint. diversity, in terms of race A some on this score. review of the firm biographies provides information Here, appears it that gender and racial diversity exists, to a limited extent, respect in the case. Co-lead coun- with attorneys involved to the principal requirement-i.e., at least one mi- diversity sel has met this Court's that lawyer with requisite experience at the nority lawyer and one woman 2 37 matter. to this assigned be firm rare acceptance. Baer's a met opinion Judge approach was not with universal In writ of certiorari, Justice Alito took aim at Judge Baer's approach, written to deny a which "impose[d] noted he had race- and sex-based staffing requirements on law 238 firms" represented before who classes the While Baer. Judge issue was not Justice Alito took the time to opine that "[c]ourt-approved squarely before the Court, discrimination ... objectionable, is on gender based and therefore it is doubtful that 239 the practice in question could survive constitutional a challenge." to the composition of the lawyers before him was never Judge attention Baer's tested in a court case. Yet, other judges appear be to following in his footsteps, Cynthia MDL order, Judge so not quite blatantly. Recently, in her although perhaps she appointed to M. participation op- Rufe advised the leadership committee provide 2 4 Perhaps an who remained. non-appointed attorneys the for portunities awareness and its impact on the composition of leadership com- of the repeat-player problem by be putting similar pressure on attorneys to mentor mittees can ameliorated judges 4 2 1 entrants. new for opportunities provide and See, 236. In e.g., Balance re J.P. Morgan Chase Cash 265 (S.D.N.Y. Litig., 242 F.R.D. 2007), amended by, 255 F.R.D. (S.D.N.Y. 130 2009). Id. at 237. 277. Martin 238. S. Ct. 402 (2013), v. Blessing, 134 Blessing to Sirius XM denying cert. v. F. App'x (2012). Inc., Radio 507 1 at Id 239. 403. 240. Steinberg, note 137. supra 241. a federal Judge example, For Weinstein, District of judge in the Southern York, New a rule recently adopted "urging role substantive a more and visible for young female lawyers" cases arguing A Judge in his courtroom. Alan Feuer, Bigger Role Female Lawyers. Wants a for a Rule, TIMEs He So Made N.Y. https://www.nytimes.com/2017/08/23/ (Aug. 23, 2017), nyregion/a-judge-wants-a-bigger-role-for-female-lawyers-so-he-made-a-rule.html [https:// perma.cc/7SY6-XG29]. Judge Ann federal Another judge, rule. Id. Donnelly, has a similar Neither edicts limited to multidistrict these of are would the they litigation, but do work same in context and beyond. Id that
36 651 FEMPIRE? A LEGAL 2018] organize and net- have begun to litigation within multidistrict women Relatedly, work in an effort to increase their numbers. According to Elizabeth Cabraser, and promoting networking, organizing, color of are and attorneys "Women lawyers 4 2 2 En Mass, a "self-organized group Groups like Women each other." and supporting of visibility helped to augment the tort plaintiffs' already lawyers," have of women 243 firm setting positions. law As the litigation leadership in judges and as women of breaking down barriers for white is component a mentorship key demonstrates, to additional way may be an networking This kind women of of color. women and tool provide that necessary success. for the concerted to expand a effort appears to be making current JPML Finally, the gender and racial composition of pool the of MDL transferee judges. For example, noticeable there is a gen- level of appointed MDL judges, transferee of eight recently the are white men, remaining five judges of While the three diversity. and racial der Amer- African one man, American Asian man, one American South African one are 2 and one white woman. one ican woman, The JPML Asian American woman, 44 to new judges get the opportunity that fact that it must ensure of the seems cognizant transfer order to recent cases. For example, in a in MDL develop expertise managing Talwani Judge Talwani-the stated that JPML judges-Judge one of these Indira Panel was yet the an MDL docket," to preside over opportunity an had not yet "ha[d] 5 2 4 new-to- giving case. the By rightfully handle that Judge Talwani could persuaded diversity. These positive racial impact on gender and is a MIDL judges a chance, there "rookie" judges more are reflective general of the population and undoubtedly will on leadership attorney selection. The degree of amount have of some impact that be seen. to remains impact CONCLUSION There sheer breadth of what needs to change should is much to overcome. Yet, the not distract from the fact that effort, the fruitful, if more is than worth In it. 2003,. a project of gender bias was not confronting the observed that Resnik work Judith 2 4 6 open- put stated, "as in when George Eliot Resnik beginning. just was Instead, that 247 res-in we are her the medias Daniel the middle." novel, In 2017, ing Deronda, in that we are still deeply in media res: we it not just beginning and progress appears are made, our work is certainly not done. has indeed been but supra note 242. Steinberg, 137. Id. 243. 244. Amanda Bronstad, Meet the Generation Next of MDL Judges, NAT'L L.J. (Apr. 20, [https:// 12:24 AM), https://www.law.com/nationallawjournal/almlD/1202784167417 2017, perma.cc/5HMQ-Z7MU]. 3, In Re: Stryker Orthopaedics at V40 Femoral Head Products 245. Transfer Order LFIT (Apr. 5, 2017) (MDL No. 2768). Liability Litig., and Legal Conversations About Women A Ongoing Continuous Body: Judith Resnik, 246. 53 564, 565 (2003). While LEGAL EDUC. was discussing gender in the Education, J. Resnik legal education, her comments are broadly applicable context the inquiry into legal of as gender an outgrowth of the gender was task force studies. education and bias Id. 247.
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